<PAGE> 1
Commission File No. 22-22443
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
PHILIP SERVICES CORPORATION
(Formerly Philip Services (Delaware), Inc.)
(Name of applicant)
100 King Street West
Hamilton, Ontario
Canada L8N 4J6
----------------------------
(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
--------------------------------- -----------
3% Convertible Subordinated Notes $18,000,000
due 2020
Approximate date of proposed public offering: On or promptly after the Effective
Date (as defined in the Amended and Restated Joint Plan of Reorganization of
Philip Services Corp., Philip Services Corporation and certain of their
subsidiaries, dated September 21, 1999).
Name and address of agent for service: Lawrence C. Paulson, Philip Industrial
Services Group Inc., Top of Troy Building, 755 West Big Beaver Road, Suite 410,
Troy, MI 48084.
The applicant hereby amends this application for qualification on such date or
dates as may be necessary to delay its effectiveness until (i) the 20th day
after the filing of a further amendment which specifically states that it shall
supersede this application, or (ii) such date as the Commission, acting pursuant
to Section 307(c) of the Act, may determine upon the written request of the
applicant.
<PAGE> 2
GENERAL
1. GENERAL INFORMATION. FURNISH THE FOLLOWING AS TO THE APPLICANT:
(a) Form of organization: A corporation.
(b) State or other sovereign power under the laws of which organized:
Delaware
2. SECURITIES ACT EXEMPTION APPLICABLE. STATE BRIEFLY THE FACTS RELIED UPON BY
THE APPLICANT AS A BASIS FOR THE CLAIM THAT REGISTRATION OF THE INDENTURE
SECURITIES UNDER THE SECURITIES ACT OF 1933 IS NOT REQUIRED.
On June 25, 1999, Philip Services Corp., an Ontario corporation ("PSC"),
together with the applicant, its wholly owned subsidiary, Philip Services
Corporation (formerly named Philip Services (Delaware), Inc.), a Delaware
corporation (the "Company" or the "Debtor"), and certain of their subsidiaries
filed a voluntary application with the Ontario Superior Court of Justice in
Toronto, Canada (the "Ontario Court"), to reorganize under the Companies
Creditors Arrangement Act (Canada) (the "CCAA") and voluntary petitions with the
United States Bankruptcy Court for the District of Delaware (the "Bankruptcy
Court"), under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C.
sections 101-1330, as amended (the "Bankruptcy Code"). On June 27, 1999, the
Company obtained First Day Orders under Chapter 11 of the United States
Bankruptcy Code from the Bankruptcy Court. On September 17, 1999 PSC, the
Company and such subsidiaries filed an Amended and Restated Plan of Compromise
and Arrangement under the CCAA with the Ontario Superior Court of Justice in
Toronto, Canada, and an Amended Joint Plan of Reorganization and a Disclosure
Statement under Chapter 11 with the Bankruptcy Court. On September 21, 1999 PSC,
the Company and such subsidiaries filed a further Amended and Restated Plan of
Compromise and Arrangement (the "Amended Canadian Plan") under the CCAA with the
Ontario Court, and an Amended Joint Plan of Reorganization (the "Amended U.S.
Plan", and together with the Amended Canadian Plan, the "Plan") and a Disclosure
Statement under Chapter 11with the Bankruptcy Court. On November 26, 1999 the
Ontario Court approved and sanctioned the Amended Canadian Plan, and on November
30, 1999, the Bankruptcy Court entered its confirmation order confirming the
Amended Joint Plan of Reorganization. On April 7, 2000, the Plan became
effective.
The Company proposes to issue, as part of the Amended U.S. Plan, pursuant
to section 1121(a) of the Bankruptcy Code, $18 million of its 3% Convertible
Subordinated Notes due 2020 (the "Notes"). The Notes will be issued to
discharge, in part, claims of certain existing creditors in the bankruptcy
proceedings described below.
The Notes are proposed to be issued in reliance upon the exemption from
registration under the Securities Act of 1933, as amended (the "Securities
Act"), set forth in section 1145(a)(1) of the Bankruptcy Code. Section 1145 of
the Bankruptcy Code exempts the offer or sale of securities under a plan of
reorganization from registration under the Securities Act and state law. Under
section 1145, the issuance of securities is exempt from registration if three
principal requirements are satisfied: (1) the securities are issued by a debtor,
its successor, or an affiliate participating in a joint plan with the debtor
(provided that such entity is not an underwriter as defined in section 1145(b)
of the Bankruptcy Code) under a plan of reorganization; (2) the recipients of
the securities hold a claim against the debtor or such affiliate, an interest in
the debtor or such affiliate, or a claim for an administrative expense against
the debtor or such affiliate; and (3) the securities are issued entirely in
exchange for the recipients' claims against or interests in the debtor or such
affiliate, or "principally" in such exchange and "partly" for cash or property.
The Company believes that the issuance of the Notes under the indenture
entered into as of April 7, 2000 by the Company and Wilmington Trust Company, as
Trustee (the "Indenture") to holders of prepetition claims under the Amended
U.S. Plan will satisfy all three conditions of section 1145 of the Bankruptcy
Code because (a) the issuances are expressly contemplated under the Amended U.S.
Plan as part of the reorganization; (b) the recipients are holders of "claims"
against the Debtor or an affiliate of the Debtor participating in the Amended
U.S. Plan with the Debtor; and (c) the recipients would obtain the Notes in
exchange for their claims.
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<PAGE> 3
AFFILIATIONS
3. AFFILIATES. FURNISH A LIST OR DIAGRAM OF ALL AFFILIATES OF THE APPLICANT
AND INDICATE THE RESPECTIVE PERCENTAGES OF VOTING SECURITIES OR OTHER BASES
OF CONTROL.
(a) The Company owns directly or indirectly, as shown, the voting
securities of the entities set forth in Appendix A hereto. Unless otherwise
indicated, the percentage owned is 100%.
(b) The Common Shares of the Company are widely held. See Item 5. -
"Principal Owners of Voting Securities" for a description of Common Shares of
the Company that are owned by High River Limited Partnership, a Delaware limited
partnership ("High River"), of which Riverdale LLC, a New York limited liability
company, is the general partner ("Riverdale"), of which Carl C. Icahn, a citizen
of the United States of America, is a member, and American Real Estate Holdings
LP, controlled by Mr. Icahn ("AREH"), as of the Effective Date.
(c) See Item 4. - "Management and Control" for a list of Directors and
Executive Officers of the Company, who, by virtue of holding such positions, may
be considered to "control" the Company, and are therefore deemed to be
"affiliates" of the Company.
MANAGEMENT AND CONTROL
4. DIRECTORS AND EXECUTIVE OFFICERS. LIST THE NAMES AND COMPLETE MAILING
ADDRESSES OF ALL DIRECTORS AND EXECUTIVE OFFICERS OF THE APPLICANT AND ALL
PERSONS CHOSEN TO BECOME DIRECTORS OR EXECUTIVE OFFICERS. INDICATE ALL
OFFICES WITH THE APPLICANT HELD OR TO BE HELD BY EACH PERSON NAMED.
The directors of the Company are as follows:
<TABLE>
<CAPTION>
NAME ADDRESS
---- -------
<S> <C>
Anthony Fernandes 100 King Street West, 22nd Floor, Hamilton,
Ontario L8N 4J6
Harold First 345 Park Avenue, New York, New York 10154
Edmund Frost Suite 1175, 1819 H Street NW, Washington, DC
20016
Robert Knauss 5580 FM 1697, Burton, TX 77835
Richard Marcantonio 370 Wabasha Street North, St. Paul, MN 55102
Felix Pardo 10 Post Office Square, Suite 990, Boston, MA
02109
Peter Offermann 154 North Mountain Ave, Montclair, New Jersey
07042
William Van Sant 7760 France Avenue South, Suite 1100,
Bloomington, MN 55435
Nathaniel Woodson 157 Church Street, New Haven, CT 06510
</TABLE>
3
<PAGE> 4
The executive officers of the Company are as follows:
<TABLE>
<CAPTION>
NAME ADDRESS OFFICE
---- ------- ------
<S> <C> <C>
Anthony G. Fernandes 100 King Street West, 22nd Floor, Hamilton, President and Chief Executive
Ontario L8N 4J6 Officer
Colin Soule 100 King Street West, 22nd Floor, Hamilton, Executive Vice President,
Ontario L8N 4J6 General Counsel and
Corporate Secretary
Phillip Widman 100 King Street West, 22nd Floor, Hamilton, Executive Vice President and
Ontario L8N 4J6 Chief Financial Officer
Lynda Kuhn 100 King Street West, 22nd Floor, Hamilton, Senior Vice President, Public
Ontario L8N 4J6 Affairs
Jack Shaw 100 King Street West, 22nd Floor, Hamilton, Senior Vice President,
Ontario L8N 4J6 Corporate Planning and
Development
Jim O'Leary 100 King Street West, 22nd Floor, Hamilton, Senior Vice President, Human
Ontario L8N 4J6 Resources
Ayman Gabarin Bridge House, Richmond, President, Philip Services
Surrey, England TW9 1EN (Europe) Limited
Brian Recatto 5151 San Felipe, Suite 1600, Houston, Senior Vice President, By-
Texas 77056 Products Management
Jim Boggs Top of Troy Building, 755 West Big Beaver Senior Vice President, Health,
Road, Suite 410, Troy, Michigan 48084 Safety and Environmental
Fred Smith 20521 Chagrin Boulevard, Shaker Heights, President, Metals Services
Cleveland, Ohio 44122 Group
Mike Tepatti Top of Troy Building, 755 West Big Beaver Senior Vice President, Eastern
Road, Suite 410, Troy, Michigan 48084 Region
Dave Fanta 12946 Dairy Ashford, Suite 100, Sugarland, Senior Vice President, Western
Texas 77478 Region
Alec Thomas 345 Horner Avenue, Etobicoke, Senior Vice President,
Ontario M8W 1Z6 Specialty Business
</TABLE>
4
<PAGE> 5
5. PRINCIPAL OWNERS OF VOTING SECURITIES. FURNISH THE FOLLOWING INFORMATION AS
TO EACH PERSON OWNING 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
APPLICANT.
The Company furnishes the following information as to each person owning
10% or more of the voting securities of the reorganized Company as of the
Effective Date:
<TABLE>
<CAPTION>
NAME AND COMPLETE PERCENTAGE OF VOTING
MAILING ADDRESS TITLE OF CLASS OWNED AMOUNT OWNED(1) SECURITIES OWNED
- ------------------------------- -------------------- --------------- --------------------
<S> <C> <C> <C>
High River Limited Partnership,
and Riverdale LLC Common Shares 9,042,852(1) 34.1%
American Real Estate
Holdings, L.P. Common Shares 2,528,263(2) 10.2%
Carl C. Icahn Common Shares 11,571,115(3) 42.3%
</TABLE>
____________
(1) Includes 6,502,474 Common Shares owned by High River and 2,540,378 Common
Shares issuable upon conversion of convertible secured debt owned by
High River.
(2) Includes 1,818,007 Common Shares owned by AREH and 710,257 Common Shares
issuable upon conversion of convertible secured debt owned by AREH.
(3) Includes the Common Shares owned by High River and AREH.
UNDERWRITERS
6. UNDERWRITERS. GIVE THE NAME AND COMPLETE MAILING ADDRESS OF (A) EACH PERSON
WHO, WITHIN THREE YEARS PRIOR TO THE DATE OF FILING THE APPLICATION, ACTED
AS AN UNDERWRITER OF ANY SECURITIES OF THE OBLIGOR WHICH WERE OUTSTANDING
ON THE DATE OF FILING THE APPLICATION, AND (B) EACH PROPOSED PRINCIPAL
UNDERWRITER OF THE SECURITIES PROPOSED TO BE OFFERED. AS TO EACH PERSON
SPECIFIED IN (A), GIVE THE TITLE OF EACH CLASS OF SECURITIES UNDERWRITTEN.
(a) Not applicable.
(b) Not applicable.
CAPITAL SECURITIES
7. CAPITALIZATION.
(a) FURNISH THE FOLLOWING INFORMATION AS TO EACH AUTHORIZED CLASS OF
SECURITIES OF THE APPLICANT.
<TABLE>
<CAPTION>
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
- ------------------------------------------- ----------------- ---------------------
<S> <C> <C>
Common Shares, par value $0.01 per share 90,000,000 24,000,000 shares (1)
Preferred Shares, par value $0.01 per share 10,000,000 None
</TABLE>
____________
(1) Does not include shares of common stock of the Company that are reserved
for issuance upon the exercise of options issued and outstanding on the
Effective Date.
(b) GIVE A BRIEF OUTLINE OF THE VOTING RIGHTS OF EACH CLASS OF VOTING
SECURITIES REFERRED TO IN PARAGRAPH (a) ABOVE.
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<PAGE> 6
Each holder of a Common Share will be entitled to one vote on all matters
on which such shareholders are entitled to vote. The Board of Directors of the
Company may designate and issue series of Preferred Stock and may establish the
voting rights thereof.
INDENTURE SECURITIES
8. ANALYSIS OF INDENTURE PROVISIONS. INSERT AT THIS POINT THE ANALYSIS OF
INDENTURE PROVISIONS REQUIRED UNDER SECTION 305(A)(2) OF THE ACT.
(a) Definition of Default: Events of Default under the Indenture include
the following:
(i) default in the payment of the principal of any Note at its
Maturity; or
(ii) default in the payment of any interest upon any Note when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(iii) default in the payment of principal and interest on Notes
required to be purchased pursuant to an Offer to Purchase as described
under the covenant in the Indenture relating to change of control when due
and payable; or
(iv) default in the performance, or breach, of the covenant in the
Indenture relating to consolidations, mergers, and the conveyance, transfer
or lease of all or substantially all of the Company's assets; or
(v) default in the performance, or breach, of any covenant of the
Company in the Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere specifically dealt with), and
continuance of such default or breach for a period of 30 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the outstanding Notes a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default"; or
(vi) a default under the terms of the Company's 6% Subordinated Notes
Due 2010, which default results in the acceleration of the payment of all
or any portion of such indebtedness; or
(vii) a default under the terms of any instrument evidencing or
securing indebtedness for money borrowed by the Company or any Significant
Subsidiary having an outstanding principal amount of $50 million, which
default results in the acceleration of the payment of all or any portion of
such indebtedness; or
(viii) a final judgment or final judgments for the payment of money
are entered against the Company or any Significant Subsidiary in an
aggregate amount of $35 million or more in excess of the amount covered by
insurance, by a court or courts of competent jurisdiction, which judgments
become liens and remain undischarged or unbonded for a period (during which
execution shall not be effectively stayed) of 60 days after the right to
appeal all such judgments have expired; or
(ix) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable U.S.
Federal or State, Canadian Federal or Provincial or other applicable
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under
6
<PAGE> 7
any applicable U.S. Federal or State, Canadian Federal or Provincial or
other applicable law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
any Significant Subsidiary or of any substantial part of the property of
the Company or any Significant Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary,
and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 90 consecutive
days; or
(x) the commencement by the Company or any Significant Subsidiary of a
voluntary case or proceeding under any applicable U.S. Federal or State,
Canadian Federal or Provincial or other applicable bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by the Company or
any Significant Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Significant Subsidiary in an involuntary case
or proceeding under any applicable U.S. Federal or State, Canadian Federal
or Provincial or other applicable bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against the Company or any Significant Subsidiary, or
the filing by the Company or any Significant Subsidiary of a petition or
answer or consent seeking reorganization or relief under any applicable
U.S. Federal or State, Canadian Federal or Provincial or other applicable
law, or the consent by the Company or any Significant Subsidiary to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or any Significant Subsidiary or of any substantial
part of the property of the Company or any Significant Subsidiary, or the
making by the Company or any Significant Subsidiary of an assignment for
the benefit of creditors, or the admission by the Company or any
Significant Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such action.
The Indenture provides that in the case of any default under the Indenture
of the character specified in clause (v) above, no notice shall be given to
holders of Notes until at least 30 days after the occurrence thereof.
(b) Authentication and Delivery; Application of Proceeds.
The Indenture provides that, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes; and the Trustee in accordance with
such Company Order shall authenticate and deliver such Notes as in this
Indenture provided and not otherwise.
The Notes will be issued in exchange for claims against the Company or its
affiliates as provided in the Plan, and accordingly, the issuance of the Notes
will not result in proceeds to the Company.
(c) Release and Substitution of Property Subject to the Lien of the
Indenture.
Not Applicable.
(d) Satisfaction and Discharge.
The Company may terminate its obligations under the Indenture when
(1) either
(A) Securities theretofore authenticated and delivered have
been delivered to the Trustee for cancellation; or
7
<PAGE> 8
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancellation,
for principal and interest to the date of such deposit (in
the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with.
(e) Evidence of Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers' Certificate, stating whether or
not to the best knowledge of the signers thereof the Company is in default in
the performance or observance of any of the terms, provisions and conditions of
Section 801 or Sections 1004 through 1009 of the Indenture and, if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
The Company shall, as long as any of the Notes are outstanding, notify the
Trustee within 10 days of any event which is, or after notice or lapse of time
or both, would become, an Event of Default, setting forth the details of such
Event of Default and the action the Company proposes to take with respect
thereto.
8
<PAGE> 9
9. OTHER OBLIGORS. GIVE THE NAME AND COMPLETE MAILING ADDRESS OF ANY PERSON,
OTHER THAN THE APPLICANT, WHO IS AN OBLIGOR UPON THE INDENTURE SECURITIES.
There are no other obligors with respect to the Notes.
CONTENTS OF APPLICATION FOR QUALIFICATION. This application for qualification
comprises:
a. Pages numbered 1 to 11, consecutively.
b. The statement of eligibility and qualification of the trustee under the
Indenture to be qualified.
c. The following exhibits in addition to those filed as a part of the
statement of eligibility and qualification of the Trustee.
* Exhibit T3A1 Certificate of Incorporation of Philip Environmental
(Delaware), Inc. (previous name of the Company),
dated July 9, 1991.
* Exhibit T3A2 Certificate of Amendment of Philip Environmental
(Delaware), Inc., increasing the number of shares of
stock the Company has authority to issue to
61,000,000, dated March 1, 1996.
* Exhibit T3A3 Certificate of Amendment of Philip Environmental
(Delaware), Inc., increasing the number of shares of
stock the Company has authority to issue to
161,000,000, dated April 9, 1997.
* Exhibit T3A4 Certificate of Amendment of Philip Environmental
(Delaware), Inc., increasing the number of shares of
stock the Company has authority to issue to
235,000,000, dated July 28, 1997.
* Exhibit T3A5 Certificate of Amendment of Philip Environmental
(Delaware), Inc., increasing the number of shares of
stock the Company has authority to issue to
300,000,000, dated October 23, 1997.
* Exhibit T3A6 Certificate of Amendment of Philip Environmental
(Delaware), Inc., changing its name to Philip
Services (Delaware), Inc., dated October 28, 1997.
* Exhibit T3A7 Certificate of Merger of Philip Environmental (South
Carolina), Inc. into Philip Services (Delaware),
Inc., dated December 9, 1997.
Exhibit T3A8 Amended and Restated Certificate of Incorporation of
Philip Services (Delaware), Inc., changing its name
to Philip Services Corporation, dated April 7, 2000.
Exhibit T3B By-Laws of the Company.
Exhibit T3C Form of Indenture.
* Exhibit T3E1 Disclosure Statement with respect to the Amended
Joint Plan of Reorganization of Philip Services
(Delaware), Inc., et al, dated September 21, 1999, as
filed with the United States Bankruptcy Court for the
District of Delaware.
* Exhibit T3E2 Amended and Restated Joint Plan of Reorganization of
Philip Services Corp., Philip Services (Delaware),
Inc. and certain of their subsidiaries, dated
September 21, 1999 (included as Appendix A to the
Disclosure statement in Exhibit T3E1 hereto).
* Exhibit T3E3 Notice of approval of Disclosure Statement and
hearing on confirmation of Plan, dated September 22,
1999.
* Exhibit T3E4 Form of Ballot distributed to holders of Class 7
claims for voting on the Amended and Restated Joint
Plan of Reorganization.
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<PAGE> 10
* Exhibit T3F Cross Reference Sheet showing the location in the
Indenture of the provisions inserted therein pursuant
to Section 310 through 318(a), inclusive, of the
Trust Indenture Act of 1939 (included in Exhibit T3C
hereof).
Exhibit T3G Statement on Form T-1 of Wilmington Trust Company.
____________
[FN]
* Previously Filed
</FN>
10
<PAGE> 11
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Philip Services Corp., a corporation organized and existing under the
laws of the Province of Ontario, Canada, has duly caused this application to be
signed on its behalf by the undersigned, thereunto duly authorized, and its seal
to be hereunto affixed and attested, all in the City of Hamilton, Canada, on the
24th day of April, 2000.
PHILIP SERVICES CORPORATION
[SEAL] BY: /s/ Phillip Widman
--------------------------------
Name: Phillip Widman
Title: Executive Vice President and
Chief Financial Officer
Attest:
/s/ Colin Soule
- ---------------------------------------
Name: Colin Soule
Title: General Counsel and
Corporate Secretary
11
<PAGE> 12
APPENDIX A
--------------
PHILIP SERVICES CORPORATION ORGANIZATION CHART
<TABLE>
<CAPTION>
COMPANY Ownership Jurisdiction
- ------------------------------------------------------------------------------------ -------------------- -------------------
<S> <C> <C>
Philip Services Corporation Delaware
Philip Industrial Services (USA), Inc 100% Texas
Cousins Waste Control Corporation 100% Ohio
(formerly Cousins Waste Control Corporation)
Nortru, Inc 100% Michigan
Allworth, Inc. 100% Alabama
Chemical Reclamation Services, Inc. 100% Texas
Philip Reclamation Services, Houston, Inc. 100% Texas
(formerly Philip Reclamation Services, Houston, Inc.
CyanoKEM, Inc. 100% Michigan
Nortru, Ltd. 100% Ontario
Rho-Chem Corporation 100% California
Sessa, S.A. de C.V. 100% Mexico
ThermaIKEM, Inc. 100% Delaware
Philip Environmental (Washington) Inc. 100% Washington
Burlington Environmental Inc. 100% Delaware
Burlington Environmental Inc. 100% Washington
(formerly Chemical Processors Inc.)
Resource Recovery Corporation 100% Washington
Philip Environmental Services Corporation 100% Missouri
(formerly Burlington Environmental Inc.)
Solvent Recovery Corporation 100% Missouri
Philip Industrial Services Group, Inc. 100% Delaware
(formerly Allwaste, Inc.)
ALRC, Inc. 100% Delaware
APLC, Inc. 100% Delaware
Allwaste Tank Cleaning, Inc. 100% Georgia
(formerly Atlanta Truck Wash)
Allwaste Recovery Systems, Inc. 100% Georgia
(formerly Allwaste Services of Georgia, Inc.)
</TABLE>
<PAGE> 13
<TABLE>
<CAPTION>
COMPANY Ownership Jurisdiction
- ------------------------------------------------------------------------------------ -------------------- -------------------
<S> <C> <C>
Georgia Recovery Systems 7% Georgia
GRS/Lake Charles Ltd. 50% Louisiana
Georgia Recovery Systems 92% Georgia
GRS/Lake Charles, Ltd. 50% Louisiana
Georgia Recovery Systems 92% Georgia
Oneida Asbestos Removal, Inc. 100% New York
Oneida Asbestos Abatement, Inc. 100% Delaware
Philip Environmental Services, Inc. 100% Delaware
(formerly Allwaste Environmental Services, Inc.)
Ace/Allwaste Environmental Services of 100% Illinois
Indiana, Inc.
(formerly Ace Power Rodding Corporation)
All Safety and Supply, Inc. 100% Texas
(formerly Wildwood Sporting Goods & Taxidermy, Inc.)
Allwaste Servicios Industriales de Control 60% Mexico
Ecologico S.A. de C.V.
Allwaste Tank Services S.A. de C.V. 60% Mexico
Caligo de Mexico, S.A. de C.V. 99% Mexico
Jesco Industrial Services, Inc. 100% Kentucky
Philip Automotive, Ltd. 100% Pennsylvania
(formerly Philip Automotive, Ltd.)
Deep Clean, Inc. 100% Michigan
Philip Services/Birmingham, Inc. 100% Alabama
(formerly Philip Services/Birmingham, Inc.)
Philip Services Hawaii, Ltd. 100% Hawaii
(formerly Allwaste of Hawaii, Ltd.)
Philip Industrial Services of Texas, Inc. 100% Texas
(formerly Allwaste Services of Port Arthur, Inc.)
Philip Services/Louisiana, Inc. 100% Louisiana
(formerly Allwaste Services of New Orleans)
Philip Services Missouri, Inc. 100% Delaware
(formerly Philip Services/ Missouri, Inc.)
Philip Services/ Mobile, Inc. 100% Alabama
(formerly Philip Services/Mobile, Inc.)
</TABLE>
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<PAGE> 14
<TABLE>
<CAPTION>
COMPANY Ownership Jurisdiction
- ------------------------------------------------------------------------------------ -------------------- -------------------
<S> <C> <C>
Philip Services /North Atlantic, Inc. 100% Delaware
(formerly Allwaste Environmental Services/
North Atlantic, Inc.)
Philip Services/North Central, Inc. 100% Iowa
(formerly Allwaste Environmental Services/
North Central, Inc.)
Philip Services/Ohio, Inc. 100% Ohio
(formerly Allwaste Environmental Services of Ohio,
Inc.)
Philip Oil Recycling, Inc. 100% North Dakota
(formerly Oil Recycling, Inc.)
Philip Services/ Oklahoma, Inc. 100% Oklahoma
(formerly Allwaste Environmental Services of
Oklahoma, Inc.)
Philip Plant Services, Inc. 100% Delaware
(formerly Allwaste Intermountain Plant Services,
Inc.)
Philip Scaffold Corporation 100% Colorado
(formerly AllScaff, Inc.)
Philip Services/Atlanta, Inc. 100% Georgia
(formerly Philip Services/Atlanta, Inc.)
Philip Services/Southwest, Inc. 100% Arizona
(formerly Philip Services/Southwest, Inc.)
Philip Services/South Central, Inc. 100% Colorado
(formerly Allwaste Environmental Services/
South Central, Inc.)
Philip West Industrial Services, Inc. 100% California
(formerly Industrial Hydro-Chem Services, Inc.)
Philip Transportation and 100% California
Remediation, Inc.
(formerly Allwaste Transportation and
Remediation, Inc.)
Philip/J.D. Meagher, Inc. 100% Massachusetts
(formerly Philip/J.D. Meagher, Inc.)
Philip Whiting, Inc. 100% Delaware
(formerly Philip/Whiting, Inc.)
PSC Enterprises, Inc. 100% Delaware
Allies Staffing Ltd. 100% Ontario
PSC Industriedienstleistungs Gmbh 100% Austria
(formerly PSC Industriedienstlesistungs Gmbh)
Philip ST, Inc. 100% Texas
(formerly Serv-Tech, Inc.)
</TABLE>
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<TABLE>
<CAPTION>
COMPANY Ownership Jurisdiction
- ------------------------------------------------------------------------------------ -------------------- -------------------
<S> <C> <C>
Chemisolv Limited 100% U.K.
Philip Chem-Solv, Inc. 100% Texas
(formerly Philip Chemi-Solv, Inc.)
Delta Maintenance, Inc. 100% Louisiana
Dotspec ltd. 100% U.K.
Industrial Services Technologies, Inc. 100% Colorado
Advanced Environmental Systems, Inc. 100% New York
International Catalyst, Inc. 100% Nevada
IST Holding Corp. 100% Colorado
Chem-Fab, Inc. 100% Texas
Piping Holdings Corp. 100% Oklahoma
Piping Companies, Inc. 100% Oklahoma
Piping Mechanical Corporation 100% Colorado
Philip Hydro-Engineering 100% Texas
& Services, Inc.
Serv-Tech Mexicana, S. de R.L. 100% Mexico
Serv-Tech de Mexico, S. de R.L. 100% Mexico
Petrochem field Services de Venezuela, S.A. 70% Venezuela
Philip Mechanical Services of Louisiana, Inc. 100% Louisiana
(formerly Philip Mechanical Services of Louisiana, Inc.)
Hartney Corporation 100% Nevada
Philip Corrosion Services, Inc. 100% Nevada
(formerly Philip Refractory Services, Inc.)
Total Refractory Systems, Inc. 100% Nevada
United Industrial Materials, Inc. 100% Nevada
Philip Refractory Services, Inc. 100% Nevada
(formerly Philip Refractory Services, Inc.)
Philip ST Piping, Inc. 100% Texas
(formerly Philip ST Piping, Inc.)
Philip Technical Services, Inc. 100% Texas
(formerly Philip Technical Services, Inc.)
</TABLE>
4
<PAGE> 16
<TABLE>
<CAPTION>
COMPANY Ownership Jurisdiction
- ------------------------------------------------------------------------------------ -------------------- -------------------
<S> <C> <C>
Philip/SECO Industries, Inc. 100% Louisiana
(formerly Philip/SECO Industries, Inc.)
Serv-Tech EPC, Inc. 100% Nevada
Petrochem Field Services de Venezuela, S.A. 30% Venezuela
F.C. Schaffer & Associates, Inc. 100% Louisiana
(formerly F.C. Schaffer & Associates, Inc.)
Serv-Tech Europe GMBH 100% Germany
Refinery Maintenance International Limited 100% U.K.
Serv-Tech International Sales, Inc. 100% Virgin Islands
Serv-Tech Services, Inc. 100% Texas
Serv-Tech Sudamericana, S.A. 98% Venezuela
Serv-Tech Canada, Inc. 100% Canada
ST Delta Canada, Inc. 100% Ontario
Terminal Technologies, Inc. 100% Texas
RMF Global, Inc. 100% Ohio
(formerly Philip Environmental Services Acquisition Corporation)
RMF Industrial Contracting, Inc. 100% Michigan
Philip Services (International) Inc. 100% Delaware
Arc Dust Processing (Barbados) Limited 100% Barbados
Philip Services Cecatur Inc. 100% Delaware
Cectaur Holdings 99% Ireland
Philip Services (Delaware) L.L.C. 100% Delaware
Philip Services Cecatur Holdings LLC 100% Delaware
Cecatur Holdings 1% Ireland
Philip Services Phencorp International Inc. 100% Delaware
Phencorp International Finance Inc. 99% Ireland
Philip Services (Phencorp) LLC 100% Delaware
Phencorp International Finance Inc. 1% Ireland
Luntz Corporation 100% Delaware
Luntz Acquisition (Delaware) Corporation 100% Delaware
</TABLE>
5
<PAGE> 17
<TABLE>
<CAPTION>
COMPANY Ownership Jurisdiction
- ------------------------------------------------------------------------------------ -------------------- -------------------
<S> <C> <C>
21st Century Environmental Management, 100% Nevada
Inc. of Nevada
21st Century Environmental Management, 100% Rhode Island
Inc. of Rhode Island
Chemical Pollution Control, Inc. of Florida - 100% Florida
A 21st Century Environmental Management
Company
Chemical Pollution Control, Inc. of 100% New York
New York - A 21st Century Environmental
Management Company
Northland Environmental, Inc. 100% Delaware
RESI Acquisition (Delaware) Corporation 100% Delaware
Chem-Freight, Inc. 100% Ohio
Republic Environmental Recycling 100% New Jersey
(New Jersey), Inc.
Republic Environmental Systems (Pennsylvania), 100% Pennsylvania
Inc.
Republic Environmental Systems (Technical 100% New Jersey
Services Group), Inc.
Republic Environmental Systems 100% Pennsylvania
(Transportation Group), Inc.
Phencorp International B.V. 100% Netherlands
Philip Services (Netherlands) B.V. 100% Netherlands
(formerly Philip Services (Netherlands) B.V.)
P.S.C. Philip Services Iberica, S.L. 100% Spain
P.S.P.E. Services Prestados As Empresas 100% Portugal
Unipessoal Limitada
Philip Services (Deutschland) Gmbh 100% Germany
Phencorp Reinsurance Company Inc. 100% Barbados
Philip Industries (Europe) Limited 100% U.K.
Philip Industrial Services (Europe) Limited 100% U.K.
Philip International Development Inc. 100% Barbados
Philip Servicos Industriais Do Brasil Ltda 100% Brazil
</TABLE>
6
<PAGE> 18
<TABLE>
<CAPTION>
COMPANY Ownership Jurisdiction
- ------------------------------------------------------------------------------------ -------------------- -------------------
<S> <C> <C>
Recycomb S.A. 24% Argentina
Resicontrol S.A. 25% Brazil
Philip Services (Europe) Limited 100% U.K.
Allied Metals Limited 100% U.K.
Arc Dust Processing (UK) Limited 33% U.K.
B.M. Metals (Recycling) Ltd. 100% U.K.
Bath Reclamation (Avonmouth) Co. Limited 100% U.K.
Blackbushe Limited 100% U.K.
Blackbushe Metals (Western) Limited 100% U.K.
Elliott Metal Company Limited 100% U.K.
Southern Hauliers Limited 100% U.K.
T.C. Fraser Metals Limited 75% U.K.
Cardiff Facility Company Limited 50% U.K.
E. Pearse (Holdings) Limited 100% U.K.
E. Pearse & Co. Limited 100% U.K.
C. Philip and Sons (Bristol) Limited 100% U.K.
Mayer Pearse Limited 100% U.K.
Widsite Limited 100% U.K.
Philip Cardiff Facility Company Limited 50% U.K.
Philip Metals (Europe) Limited 100% U.K.
PSC (Europe) Limited 100% U.K.
Philip Metals (USA), Inc. 100% Ohio
D & L, Inc. 100% Pennsylvania
(formerly D & L Holding, Inc.)
Alltift Inc. 50% New York
Cappco Tubular Products USA, Inc. 100% Georgia
(formerly Georgia Tubular Products Inc.)
JW Ventures Inc. 50% Texas
Philip Metals Recovery (USA) Inc. 100% Arizona
(formerly Waxman Resources (USA) Inc.)
</TABLE>
7
<PAGE> 19
<TABLE>
<CAPTION>
COMPANY Ownership Jurisdiction
- ------------------------------------------------------------------------------------ -------------------- -------------------
<S> <C> <C>
Philip Metals (New York), Inc. 100% New York
(formerly Philip Metals (New York), Inc.)
Philip Metals, Inc. 100% Ohio
(formerly Philip Metals (Ohio), Inc.)
Sparrows Point Scrap Processing, LLC 50% Delaware
Philip Services (Pennsylvania), Inc. 100% Pennsylvania
Philip Services Inc. 100% Ontario
Philip Analytical Services Inc. 100% Ontario
1242204 Ontario Inc. * Ontario
Delsan-A.I.M. Environmental Services Inc. 50% Canada
Fercyco & Partners 33% Ontario
Fercyco Incorporated 50% Ontario
Fercyco & Partners 33% Ontario
Fers et Meteaux Recycles Ltd. 50% Quebec
K-Scrap Resources Ltd. 42% Ontario
Philip Investment Corp. 100% Ontario
Environmental Research & Development Limited
Partnership
Environmental Research & Capital Corporation
Environmental Research & Development Limited
Partnership
R&R Trucking Inc. 50% Ontario
Recyclage d'Aluminium Quebec Inc./Quebec Aluminum 100% Canada
Recycling Inc.
</TABLE>
8
<PAGE> 1
EXHIBIT T3A8
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PHILIP SERVICES CORPORATION
-------------------------------------------
Pursuant to Sections 242 and 245 of the
Delaware General Corporation Law
-------------------------------------------
Philip Services Corporation (the "Corporation"), a corporation organized
and existing under the General Corporation Law of the State of Delaware (as in
effect from time to time, the "DGCL"), does hereby certify as follows:
(1) The name of the Corporation is Philip Services Corporation. The
Corporation was originally incorporated under the name Philip Environmental
(Delaware), Inc. The Corporation later changed its name to Philip Services
(Delaware), Inc. and then to Philip Services Corporation. The original
certificate of incorporation of the Corporation was filed with the office of the
Secretary of State of the State of Delaware on July 10, 1991.
(2) This Amended and Restated Certificate of Incorporation was duly adopted
by the Board of Directors of the Corporation (the "Board of Directors") and by
the sole stockholder of the Corporation in accordance with Sections 228, 242 and
245 of the DGCL.
(3) This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the certificate of incorporation of the
Corporation, as heretofore amended or supplemented.
<PAGE> 2
(4) Upon the filing (the "Effective Time") of this Amended and Restated
Certificate of Incorporation pursuant to the DGCL, and pursuant to the
Confirmation Order, dated November 30, 1999, of the United States Bankruptcy
Court for the District of Delaware relating to the First Amended Joint Plan of
Reorganization of Philip Services (Delaware), Inc., et al., each share of the
Corporation's common stock, $1.00 par value per share, issued and outstanding
immediately prior to the Effective Time shall be cancelled and extinguished.
(5) The text of the Certificate of Incorporation is amended and restated in
its entirety as follows:
FIRST: The name of the Corporation is
PHILIP SERVICES CORPORATION
SECOND: The registered office of the Corporation in the State of Delaware
is located at 1209 Orange Street, City of Wilmington, County of Newcastle. The
name of its registered agent in the State of Delaware at such address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage, directly or indirectly,
in any lawful act or activity for which corporations may be organized under the
DGCL.
FOURTH: (a) The aggregate number of shares of capital stock which the
Corporation shall have the authority to issue is one hundred million shares, of
which ninety million (90,000,000) shares shall be designated Common Stock, par
value $0.01 per share, and of which ten million (10,000,000) shares shall be
designated Preferred Stock, par value $0.01 per share.
(b) Preferred Stock may be issued in one or more series as may be
determined from time to time by the Board of Directors. Authority is hereby
expressly granted to the Board of Directors to authorize the issuance of one or
more series of Preferred Stock, and, subject to paragraph (c) of this Article
FOURTH, to fix by resolution or resolutions providing for the issue of each such
series the voting powers, designations, preferences, and relative,
participating, optional, redemption, conversion, exchange or other special
rights, qualifications, limitations or restrictions of such series, and the
number of shares in each series, to the full extent now or
2
<PAGE> 3
hereafter permitted by law. Except to the extent that the holders of issued and
outstanding shares of Preferred Stock are entitled to vote, the entire voting
power for the election of directors shall be vested exclusively in the holders
of Common Stock, who shall be entitled to one vote for each share of Common
Stock held by them of record.
(c) To the extent prohibited by Section 1123 of Title 11 of the United
States Code (the "Bankruptcy Code"), the Corporation shall not issue non-voting
equity securities; provided, however, that the foregoing (i) will have no
further force and effect beyond that required under Section 1123 of the
Bankruptcy Code, (ii) will have such force and effect, if any, only for so long
as such Section 1123 is in effect and applicable to the Corporation, and (iii)
may be amended or eliminated in accordance with applicable law as from time to
time in effect.
FIFTH: (a) The business of the Corporation shall be managed under the
direction of the Board of Directors except as otherwise provided by law. The
number of directors of the Corporation ("Directors") shall be fixed from time to
time by, or in the manner provided in, the by-laws of the Corporation (the
"By-Laws"). Election of Directors need not be by written ballot unless the
By-Laws shall so provide.
(b) The vote of the holders of two-thirds of the shares of capital stock of
the Corporation, issued and outstanding and entitled to vote thereon, shall be
necessary at any meeting of stockholders to amend this Certificate of
Incorporation or the By-Laws to provide for the Board of Directors to be divided
into classes, pursuant to Section 141(d) of the DGCL.
SIXTH: The Board of Directors may make, alter or repeal the By-Laws except
as otherwise provided in this Certificate of Incorporation and the By-Laws.
SEVENTH: (a) The affirmative vote of the holders of a majority of the
Disinterested Stock (as hereinafter defined) entitled to vote in the election of
Directors, considered for the purposes of this Article SEVENTH as one class,
shall be required for the adoption or authorization of a Business Combination
(as hereinafter defined) with any other Person (as hereinafter defined) if, as
of the record date for the determination of stockholders entitled to notice
thereof and to vote thereon, such other Person is the beneficial owner, directly
or indirectly, of more than twenty percent (20%) of the outstanding shares of
capital stock of the Corporation entitled to
3
<PAGE> 4
vote in the election of directors, considered for the purposes of this Article
SEVENTH as one class;
(b) The provisions of this Article SEVENTH shall also apply to a Business
Combination with any other Person which at any time has been the beneficial
owner, directly or indirectly, of more than twenty percent (20%) of the
outstanding shares of capital stock of the Corporation entitled to vote in the
election of directors, considered for the purpose of this Article SEVENTH as one
class, notwithstanding the fact that such other Person has reduced its
stockholdings below twenty percent (20%) if, as of the record date for the
determination of shareholders entitled to notice of and to vote on the Business
Combination, such other Person is an Affiliate (as hereinafter defined) of the
Corporation.
(c) Notwithstanding the foregoing, the voting requirements of the
Disinterested Stock under this Article SEVENTH shall not be applicable to the
adoption or authorization of a Business Combination if:
(i) The cash, or fair market value of other consideration, to be received per
share by holders of shares of any class of capital stock of the Corporation in
such Business Combination bears the same or a greater percentage relationship to
the market price of such shares of capital stock immediately prior to the
announcement of such Business Combination as the highest per share price
(including brokerage commissions and/or soliciting dealers' fees) which such
other Person has theretofore paid for any of such shares of capital stock
already owned by it bears to the market price of such shares of capital stock
immediately prior to the commencement of acquisition of such shares of capital
stock by such other Person; or
(ii) The cash, or fair market value or other consideration, to be received per
share by holders of shares of any class of capital stock of the Corporation in
such Business Combination is not less than the highest per share price
(including brokerage commissions and/or soliciting dealers' fees) paid by such
other Person in acquiring any of its holdings of such shares of capital stock.
(d) As used in this Article SEVENTH,
(i) "Affiliate" shall have the meaning set forth in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934 as in effect on
January 1, 2000;
(ii) "Business Combination" shall include any merger or consolidation of the
Corporation with or into any other corporation or the sale or disposition of all
or substantially all of the assets of the Corporation to, or any sale or lease
to the Corporation or any subsidiary thereof in exchange for securities of the
Corporation of any assets of, any other Person;
4
<PAGE> 5
(iii) "Disinterested Stock" shall mean the shares of capital stock of the
Corporation entitled to vote for the election of directors which are not
beneficially owned by a Person that is the beneficial owner, directly or
indirectly, of more than twenty percent (20%) of the outstanding shares of
capital stock of the Corporation entitled to vote in the election of directors
or any other Person that is an Affiliate of such Person;
(iv) "Person" shall include any corporation, person or other entity (other than
the Corporation, any of its subsidiaries or a trustee holding stock for the
benefit of employees of the Corporation or its subsidiaries, or any one of them,
pursuant to one or more employee benefit plans or arrangements) and any other
entity with which such Person or Affiliate of such Person has any agreement,
arrangement or understanding, directly or indirectly, for the purpose of
acquiring, holding, voting or disposing of capital stock of the Corporation in
any transaction or series of transactions not involving a 'public offering' of
the Corporation's capital stock within the meaning of the Securities Act of
1933, as amended, together with the successors and assigns of such entities;
(v) in the event that a particular Person has the right to acquire shares of
capital stock of the Corporation, pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise, such Person shall be
deemed to be the beneficial owner of such shares; and
(vi) the outstanding shares of any class of capital stock of the Corporation
shall include shares deemed owned through application of clause (v) above but
shall not include any other shares which may be issuable pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise;
(e) A majority of the Directors shall have the power and duty to determine
for the purposes of this Article SEVENTH on the basis of information known to
them whether (i) a Person beneficially owns more than twenty percent (20%) of
the outstanding shares of capital stock of the Corporation entitled to vote in
the election of Directors, (ii) a Person is an Affiliate of another Person or
(iii) a Person has an agreement, arrangement or understanding with any another
Person.
(f) No amendment to this Certificate of Incorporation shall amend, alter,
change or repeal any of the provisions of this Article SEVENTH, unless the
amendment effecting such amendment, alteration, change or repeal shall receive
the affirmative vote of the holders of sixty-six and two thirds percent (66
2/3%) of all shares of capital stock of the Corporation entitled to vote in the
election of Directors, considered for the purposes of this Article SEVENTH as
one class.
(g) Nothing contained in this Article SEVENTH shall be construed to relieve
any other Person from any fiduciary obligation imposed by law.
EIGHTH: (a) An approval by the holders of a majority of the Corporation's
capital stock at a meeting and entitled to vote thereon shall be necessary for
the Corporation to take any of the following actions:
5
<PAGE> 6
(1) Any issuance of capital stock of the Corporation that will result in a
change of control of the Corporation;
(2) any acquisition of the stock or assets of another company if:
(i) any Director or officer or substantial stockholder of the Corporation
has a 5% or greater interest (or such persons collectively have a 10% or greater
interest), directly or indirectly, in the company or assets to be acquired or in
the consideration to be paid in the transaction or series of related
transactions and the present or potential issuance of capital stock of the
Corporation, or securities convertible into or exercisable for shares of capital
stock of the Corporation, that could result in an increase in the outstanding
capital stock or voting power of the Corporation of 5% or more; or
(ii) any issuance or potential issuance of capital stock of the Corpora-
tion, or securities convertible into or exercisable for shares of capital stock
of the Corporation, other than a public offering for cash, where:
(A) the capital stock has or will have upon issuance voting power equal to
or in excess of 20% of the voting power outstanding before the issuance of the
capital stock or securities convertible into or exercisable for the capital
stock; or
(B) the number of shares of capital stock to be issued is or will be equal
to or in excess of 20% of the number of shares of capital stock outstanding
before the issuance of the capital stock; or
(3) any transaction other than a public offering involving:
(i) the sale or issuance by the Corporation of capital stock (or securities
convertible into or exercisable for capital stock) at a price less than the
greater of book or market value which, together with sales by Directors or
officers or substantial stockholders of the Corporation, equals 20% or more of
capital stock or 20% or more of the voting power outstanding before the
issuance; or
(ii) the sale or issuance by the Corporation of capital stock (or
securities convertible into or exercisable for capital stock) equal to 20% or
more of the capital stock or 20% or more of the voting power outstanding before
the issuance for less than the greater of book or market value of the capital
stock.
6
<PAGE> 7
(b) Exceptions for the stockholder approval required in this Article EIGHTH
may be made upon application to the Board of Directors when:
(1) the delay in securing stockholder approval would seriously jeopardize
the financial viability of the Corporation; and
(2) reliance by the Corporation on this exception is expressly approved by
the Audit Committee or a comparable body of the Board of Directors.
In the event that the Corporation is relying on this exception, the
Corporation must mail to all stockholders not later than ten days before
issuance of the securities a letter alerting them to its omission to seek the
stockholder approval that would otherwise be required and indicating that the
Audit Committee or a comparable body of the Board of Directors has expressly
approved the exception.
(c) Only shares of capital stock actually issued and outstanding (excluding
treasury shares or shares held by a subsidiary) are to be used in making any
calculation provided for in this Article EIGHTH. Unissued shares of capital
stock reserved for issuance upon conversion of securities or upon exercise of
options or warrants will not be regarded as outstanding.
(d) Voting power outstanding as used in this Article EIGHTH refers to the
aggregate number of votes which may be cast by holders of those securities
outstanding which entitle the holders thereof to vote generally on all matters
submitted to the holders of capital stock of the Corporation for a vote.
(e) Any holder of more than either 5% of the number of shares of capital
stock of the Corporation or 5% of the voting power outstanding of the
Corporation shall be considered a substantial stockholder of the Corporation for
purposes of this Article EIGHTH.
NINTH: The Directors shall be protected from personal liability, through
indemnification or otherwise, to the fullest extent permitted under the DGCL.
(a) A Director shall under no circumstances have any personal liability to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director except for those breaches and acts or omissions with respect
to which the DGCL expressly provides that this provision shall not eliminate or
limit such personal liability of Directors. Neither the modification or repeal
of
7
<PAGE> 8
this paragraph (a) of Article NINTH nor any amendment to the DGCL that does not
have retroactive application shall limit the right of Directors hereunder to
exculpation from personal liability for any act or omission occurring prior to
such amendment, modification or repeal.
(b) The Corporation shall indemnify each Director and each officer of the
Corporation to the fullest extent permitted by applicable law, except as may be
otherwise provided in the By-Laws, and in furtherance hereof the Board of
Directors is expressly authorized to amend the By-Laws from time to time to give
full effect hereto, notwithstanding possible self-interest of the Directors in
the action being taken. Neither the modification or repeal of this paragraph (b)
of Article NINTH nor any amendment to the DGCL that does not have retroactive
application shall limit the right of Directors and officers of the Corporation
to indemnification hereunder with respect to any act or omission occurring prior
to such modification, amendment or repeal.
TENTH: The Corporation shall not enter into any rights plan or rights
agreement, other than the Rights Agreement of the Corporation dated as of March
31, 2000, without the approval of the holders of at least sixty-six and two
thirds percent (66 2/3%) of all shares of each class of capital stock of the
Corporation entitled to vote in the election of Directors, voting as a class.
ELEVENTH: The Corporation shall not adopt or enter into any stock option,
stock purchase, restricted stock, stock appreciation rights or other stock-based
incentive or compensation plan, program or agreement involving the issuance of
stock, other than (i) the Philip Services Corporation Stock Option Plan approved
by the Corporation and in effect as of the "Effective Date" (as defined in the
First Amended Joint Plan of Reorganization of Philip Services (Delaware), Inc.,
et al., dated September 21, 1999) to the extent provided therein on the
Effective Date; (ii) stock options granted to, and the equity purchase and
stock-based bonus rights of, the Chief Executive Officer of the Corporation
pursuant to his employment agreement with the Corporation, dated as of August
25, 1999 to the extent provided therein as of on the Effective Date; (iii) a
restricted stock or similar plan for the benefit of non-employee directors
providing for the issuance of shares of the Corporation's stock in lieu of fees
or retainers with a value not to exceed $10,000 per director per year (valued at
the then-current market price of such stock on the principal stock exchange or
quotation system on which such stock is then listed or traded); and (iv) any
stock-based bonus plan for officers of the Corporation, not exceeding 30 percent
of any such officer's base salary per year, based on the then-current market
price of the
8
<PAGE> 9
Corporation's stock on the principal stock exchange or quotation system on which
such stock is then listed or traded, as approved by the Board of Directors. The
Corporation shall not effect any changes to the plan referred to in clause (i)
immediately preceding. The Corporation shall not effect any changes to the
agreement referred to in clause (ii) immediately preceding to the extent that
such changes relate to the stock options, equity purchase or stock-based bonus
rights referred to in such clause (ii).
TWELFTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stock holders herein are granted subject to this reservation; provided however,
that any amendment to Article Tenth of this Certificate of Incorporation shall
require the approval of the holders of at least sixty-six and two-thirds percent
(66 2/3%) of all shares of capital stock of the Corporation entitled to vote in
the election of Directors considered for the purposes of this Article Twelfth as
one class.
THIRTEENTH: The Corporation shall not be governed by Section 203 of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed on its behalf this 7th day of April,
2000.
PHILIP SERVICES CORPORATION
By: /s/ Colin Soule
--------------------------------
Name: Colin Soule
Title: Executive Vice President,
General Counsel
and Corporate Secretary
9
<PAGE> 1
EXHIBIT T3B
BY-LAWS
OF
PHILIP SERVICES CORPORATION
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held either within or without the State of Delaware, on
such date, at such time and at such place as the Board of Directors may
designate in the call or in a waiver of notice for the purpose of electing
directors and for the transaction of such other business as may properly be
brought before the meeting.
Section 2. Special Meetings. Special Meetings of the stockholders may be
called by the Board of Directors or by the President, and shall be called by the
President or by the Secretary upon the written request of the holders of record
of at least ten percent (10%) of the shares of stock of the Corporation, issued
and outstanding and entitled to vote, at such times and at such place either
within or without the State of Delaware as may be stated in the call or in a
waiver of notice thereof.
Section 3. Notice of Meetings. Notice of the time, place and purpose of
every meeting of stockholders shall be delivered personally or mailed not less
than ten days nor more than sixty days previous thereto to each stockholder of
record entitled to vote, at such stock-holder's post office address appearing
upon the records of the Corporation or at such other address as shall be
furnished in writing by him or her to the Corporation for such purpose. Such
further notice shall be given as may be required by law or by these By-Laws. Any
meeting may be held without notice if all stockholders entitled to vote are
present in person or by proxy, or if notice is waived in writing, either before
or after the meeting, by those not present.
Section 4. Quorum. The holders of record of at least a majority of the
shares of the stock of the Corporation, issued and outstanding and entitled to
vote,
<PAGE> 2
present in person or by proxy, shall, except as otherwise provided by law or by
these By-Laws, constitute a quorum at all meetings of the stockholders; if there
be no such quorum, the holders of a majority of such shares so present or
represented may adjourn the meeting from time to time until a quorum shall have
been obtained. A quorum, once established, shall not be broken by the withdrawal
of enough votes to have less than a quorum.
Section 5. Organization of Meetings. Meetings of the stockholders shall be
presided over by the Chairman of the Board, if there be one, or if the Chairman
of the Board is not present by the President, or if the President is not
present, by a chairman to be chosen at the meeting. The Secretary of the
Corporation, or in the Secretary of the Corporation's absence, an Assistant
Secretary, shall act as Secretary of the meeting, if present.
Section 6. Voting. At each meeting of stockholders, except as otherwise
provided by statute or the Certificate of Incorporation, every holder of record
of stock entitled to vote shall be entitled to one vote in person or by proxy
for each share of such stock standing in his or her name on the records of the
Corporation. Elections of directors shall be determined by a plurality of the
votes cast and, except as otherwise provided by statute, the Certificate of
Incorporation, or these By-Laws, all other action shall be determined by a
majority of the votes cast at such meeting. Each proxy to vote shall be in
writing and signed by the stockholder or by such stockholder's duly authorized
attorney.
At all elections of directors, the voting shall be by ballot or in such
other manner as may be determined by the stockholders present in person or by
proxy entitled to vote at such election. With respect to any other matter
presented to the stockholders for their consideration at a meeting, any
stockholder entitled to vote may, on any question, demand a vote by ballot.
A complete list of the stockholders entitled to vote at each such meeting,
arranged in alphabetical order, with the address of each, and the number of
shares registered in the name of each stockholder, shall be prepared by the
Secretary and shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours, for a period of
at least ten days prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
2
<PAGE> 3
Section 7. Inspectors of Election. The Board of Directors in advance of any
meeting of stockholders may appoint one or more Inspectors of Election to act at
the meeting or any adjournment thereof. If Inspectors of Election are not so
appointed, the chairman of the meeting may, and on the request of any
stockholder entitled to vote shall, appoint one or more Inspectors of Election.
Each Inspector of Election, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of Inspector of
Election at such meeting with strict impartiality and according to the best of
his or her ability. If appointed, Inspectors of Election shall take charge of
the polls and, when the vote is completed, shall make a certificate of the
result of the vote taken and of such other facts as may be required by law.
Section 8. Action by Consent. Any action required or permitted to be taken
at any meeting of stockholders may be taken without a meeting, without prior
notice and without a vote, if, prior to such action, a written consent or
consents thereto, setting forth such action, is signed by the holders of record
of shares of the stock of the Corporation, issued and outstanding and entitled
to vote thereon, having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
ARTICLE II
DIRECTORS
Section 1. Number, Quorum, Term, Vacancies, Removal. Each director shall be
at least 18 years of age. A director need not be a stockholder, a citizen of the
United States, or a resident of the State of Delaware. The number of directors
constituting the entire Board shall initially consist of nine (9) members and
thereafter shall consist of not less than three (3) nor more than fifteen (15)
members, the exact number of which shall be fixed from time to time by action of
the Board of Directors, one of whom may be selected by the Board of Directors to
be its Chairman. The use of the phrase "entire Board" herein refers to the total
number of directors which the Corporation would have if there were no vacancies
or unfilled newly created directorships.
A majority of the members of the Board of Directors then holding office
(but not less than one-third of the total number of directors nor less than two
directors) shall constitute a quorum for the transaction of business, but if at
any meeting of the
3
<PAGE> 4
Board there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time until a quorum shall have been obtained.
Directors shall hold office until the next annual election and until their
successors shall have been elected and shall have qualified, unless sooner
displaced.
Whenever any vacancy shall have occurred in the Board of Directors, by
reason of death, resignation, or otherwise, other than removal of a director
with or without cause by a vote of the stockholders, it shall be filled by a
majority of the remaining directors, though less than a quorum (except as
otherwise provided by law), or by the stockholders, and the person so chosen
shall hold office until the next annual election and until a successor is duly
elected and has qualified.
Any one or more of the directors of the Corporation may be removed either
with or without cause at any time by a vote of the holders of record of at least
a majority of the shares of stock of the Corporation, issued and outstanding and
entitled to vote, and thereupon the term of the director or directors who shall
have been so removed shall forthwith terminate and there shall be a vacancy or
vacancies in the Board of Directors, to be filled by a vote of the stockholders
as provided in these By-Laws.
Section 2. Meetings, Notice. Meetings of the Board of Directors shall be
held at such place either within or without the State of Delaware, as may from
time to time be fixed by resolution of the Board, or as may be specified in the
call or in a waiver of notice thereof. Regular meetings of the Board of
Directors shall be held at such times as may from time to time be fixed by
resolution of the Board, and special meetings may be held at any time upon the
call of two directors, the Chairman of the Board, if one be elected, or the
President, by oral, telegraphic or written notice, duly served on or sent or
mailed to each director not less than two days before such meeting. A meeting of
the Board may be held without notice immediately after the annual meeting of
stockholders at the same place at which such meeting was held. Notice need not
be given of regular meetings of the Board. Any meeting may be held without
notice, if all directors are present, or if notice is waived in writing, either
before or after the meeting, by those not present.
Section 3. Meetings by Means of Conference Telephone. Unless otherwise
provided in the Certificate of Incorporation, members of the Board of Directors
of the Corporation, or any committee thereof, may participate in a meeting of
the Board of Directors or such committee by means of a conference telephone or
similar communications equipment by means of which all persons participating in
the meeting
4
<PAGE> 5
can hear each other, and participation in a meeting pursuant to this Section 3
shall constitute presence in person at such meeting.
Section 4. Committees. The Board of Directors may, in its discretion, by
resolution passed by a majority of the whole Board, designate from among its
members one or more committees which shall consist of two or more directors. The
Board may designate one or more directors as alternate members of any such
committee, who may replace any absent or disqualified member at any meeting of
the committee. Such committees shall have and may exercise such powers as shall
be conferred or authorized by the resolution appointing them. A majority of any
such committee may determine its action and fix the time and place of its
meetings, unless the Board of Directors shall otherwise provide. The Board shall
have power at any time to change the membership of any such committee, to fill
vacancies in it, or to dissolve it.
Section 5. Action by Consent. Any action required or permitted to be taken
at any meeting of the Board of Directors, or of any committee thereof, may be
taken without a meeting, if prior to such action a written consent or consents
thereto is signed by all members of the Board, or of such committee as the case
may be, and such written consent or consents is filed with the minutes of
proceedings of the Board or committee.
Section 6. Compensation. The Board of Directors may determine, from time to
time, the amount of compensation which shall be paid to its members. The Board
of Directors shall also have power, in its discretion, to allow a fixed sum and
expenses for attendance at each regular or special meeting of the Board, or of
any committee of the Board. In addition, the Board of Directors shall also have
power, in its discretion, to provide for and pay to directors rendering services
to the Corporation not ordinarily rendered by directors, as such, special
compensation appropriate to the value of such services, as determined by the
Board from time to time.
ARTICLE III
OFFICERS
Section 1. Titles and Election. The officers of the Corporation, who shall
be chosen by the Board of Directors at its first meeting after each annual
meeting of stockholders, shall be a President, a Treasurer and a Secretary. The
Board of Directors from time to time may elect a Chairman of the Board, one or
more Vice
5
<PAGE> 6
Presidents, Assistant Secretaries, Assistant Treasurers and such other officers
and agents as it shall deem necessary, and may define their powers and duties.
Any number of offices may be held by the same person.
Section 2. Terms of Office. Officers shall hold office until their
successors are chosen and qualify.
Section 3. Removal. Any officer may be removed, either with or without
cause, at any time, by the affirmative vote of a majority of the Board of
Directors.
Section 4. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors or to the Secretary. Such resignation
shall take effect at the time specified therein, and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 5. Vacancies. If the office of any officer or agent becomes vacant
by reason of death, resignation, retirement, disqualification, removal from
office or otherwise, the directors may choose a successor, who shall hold office
for the unexpired term in respect of which such vacancy occurred.
Section 6. Chairman of the Board. The Chairman of the Board of Directors,
if one be elected, shall preside at all meetings of the Board of Directors and
of the stockholders, and the Chairman shall have and perform such other duties
as from time to time may be assigned to the Chairman by the Board of Directors.
Section 7. President. The President shall be the chief executive officer of
the Corporation and, in the absence of the Chairman, shall preside at all
meetings of the Board of Directors, and of the stockholders. The President shall
exercise the powers and perform the duties usual to the chief executive officer
and, subject to the control of the Board of Directors, shall have general
management and control of the affairs and business of the Corporation; the
President shall appoint and discharge employees and agents of the Corporation
(other than officers elected by the Board of Directors) and fix their
compensation; and the President shall see that all orders and resolutions of the
Board of Directors are carried into effect. The President shall have the power
to execute bonds, mortgages and other contracts, agreements and instruments of
the Corporation, and shall do and perform such other duties as from time to time
may be assigned to the President by the Board of Directors.
6
<PAGE> 7
Section 8. Vice Presidents. If chosen, the Vice Presidents, in the order of
their seniority, shall, in the absence or disability of the President, exercise
all of the powers and duties of the President. Such Vice Presidents shall have
the power to execute bonds, notes, mortgages and other contracts, agreements and
instruments of the Corporation, and shall do and perform such other duties
incident to the office of Vice President and as the Board of Directors, or the
President shall direct.
Section 9. Secretary. The Secretary shall attend all sessions of the Board
and all meetings of the stockholders and record all votes and the minutes of
proceedings in a book to be kept for that purpose. The Secretary shall give, or
cause to be given, notice of all meetings of the stockholders and of the Board
of Directors, and shall perform such other duties as may be prescribed by the
Board of Directors. The Secretary shall affix the corporate seal to any
instrument requiring it, and when so affixed, it shall be attested by the
signature of the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer who may affix the seal to any such instrument in the event
of the absence or disability of the Secretary. The Secretary shall have and be
the custodian of the stock records and all other books, records and papers of
the Corporation (other than financial) and shall see that all books, reports,
statements, certificates and other documents and records required by law are
properly kept and filed.
Section 10. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys, and other valuable effects in the name and to the credit of
the Corporation, in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board, taking proper vouchers for such disbursements, and shall
render to the directors whenever they may require it, an account of all his or
her transactions as Treasurer and of the financial condition of the Corporation.
Section 11. Duties of Officers May Be Delegated. In case of the absence or
disability of any officer of the Corporation, or for any other reason that the
Board may deem sufficient, the Board may delegate, for the time being, the
powers or duties, or any of them, of such officer to any other officer, or to
any director.
7
<PAGE> 8
ARTICLE IV
INDEMNIFICATION
Section 1. Actions by Others. The Corporation (1) shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he or she is or was a
director or an officer of the Corporation and (2) except as otherwise required
by Section 3 of this Article, may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he or she is or was an employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee,
agent of or participant in another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
Section 2. Actions by or in the Right of the Corporation. The Corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
he or she is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee, agent of or participant in another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances
8
<PAGE> 9
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper.
Section 3. Successful Defense. To the extent that a person who is or was a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Section 1 or Section 2 of this Article, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith.
Section 4. Specific Authorization. Any indemnification under Section 1 or
Section 2 of this Article (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in said Sections 1 and 2. Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
Section 5. Advance of Expenses. Expenses incurred by any person who may
have a right of indemnification under this Article in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount unless
it shall ultimately be determined that he or she is entitled to be indemnified
by the Corporation pursuant to this Article.
Section 6. Right of Indemnity Not Exclusive. The indemnification provided
by this Article shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 7. Insurance. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director,
9
<PAGE> 10
officer, employee or agent of or participant in another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him or her and incurred by him or her in any such capacity, or
arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify him or her against such liability under the
provisions of this Article, Section 145 of the General Corporation Law of the
State of Delaware or otherwise.
Section 8. Invalidity of Any Provisions of This Article. The invalidity or
unenforceability of any provision of this Article shall not affect the validity
or enforceability of the remaining provisions of this Article.
ARTICLE V
CAPITAL STOCK
Section 1. Certificates. The interest of each stockholder of the
Corporation shall be evidenced by certificates for shares of stock in such form
as the Board of Directors may from time to time prescribe. The certificates of
stock shall be signed by the President or a Vice President and by the Secretary,
or the Treasurer, or an Assistant Secretary, or an Assistant Treasurer, sealed
with the seal of the Corporation or a facsimile thereof, and countersigned and
registered in such manner, if any, as the Board of Directors may by resolution
prescribe. Any or all of the signatures on a certificate may be a facsimile.
Where any such certificate is countersigned by a transfer agent other than the
Corporation or its employee, or registered by a registrar other than the
Corporation or its employee, the signature of any such officer may be a
facsimile signature. In case any officer or officers who shall have signed, or
whose facsimile signature or signatures shall have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates or whose
facsimile signature or signatures shall have been used thereon had not ceased to
be such officer or officers of the Corporation.
Section 2. Transfer. The shares of stock of the Corporation shall be
transferred only upon the books of the Corporation by the holder thereof in
person or by his or her attorney, upon surrender for cancellation of
certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached
10
<PAGE> 11
thereto, duly executed, with such proof of the authenticity of the signature as
the Corporation or its agents may reasonably require.
Section 3. Record Dates. The Board of Directors may fix in advance a date,
not less than ten nor more than sixty days preceding the date of any meeting of
stockholders, or the date for the payment of any dividend, or the date for the
distribution or allotment of any rights, or the date when any change, conversion
or exchange of capital stock shall go into effect, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting, or entitled to receive payment of any such dividend, or to receive
any distribution or allotment of such rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, and in such
case only such stockholders as shall be stockholders of record on the date so
fixed shall be entitled to such notice of, and to vote at, such meeting, or to
receive payment of such dividend, or to receive such distribution or allotment
or rights or to exercise such rights, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation after any such record date
fixed as aforesaid.
Section 4. Lost Certificates. In the event that any certificate of stock is
lost, stolen, destroyed or mutilated, the Board of Directors may authorize the
issuance of a new certificate of the same tenor and for the same number of
shares in lieu thereof. The Board may in its discretion, before the issuance of
such new certificate, require the owner of the lost, stolen, destroyed or
mutilated certificate, or the legal representative of the owner to make an
affidavit or affirmation setting forth such facts as to the loss, destruction or
mutilation as it deems necessary, and to give the Corporation a bond in such
reasonable sum as it directs to indemnify the Corporation.
ARTICLE VI
CHECKS, NOTES, ETC.
Section 1. Checks, Notes, Etc. All checks and drafts on the Corporation's
bank accounts and all bills of exchange and promissory notes, and all
acceptances, obligations and other instruments for the payment of money, may be
signed by the President, any Vice President or the Treasurer and may also be
signed by such other officer or officers, agent or agents, as shall be thereunto
authorized from time to time by the Board of Directors.
11
<PAGE> 12
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1. Offices. The registered office of the Corporation shall be
located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware,
19801 and said corporation shall be the registered agent of this Corporation in
charge thereof. The Corporation may have other offices either within or without
the State of Delaware at such places as shall be determined from time to time
by the Board of Directors or the business of the Corporation may require.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 3. Corporate Seal. The seal of the Corporation shall be circular in
form and contain the name of the Corporation, and the year and state of its
incorporation. Such seal may be altered from time to time at the discretion of
the Board of Directors.
Section 4. Books. There shall be kept at such office of the Corporation as
the Board of Directors shall determine, within or without the State of Delaware,
correct books and records of account of all its business and transactions,
minutes of the proceedings of its stockholders, Board of Directors and
committees and such other books and records as the Board of Directors may from
time to time determine.
Section 5. Voting of Stock. Unless otherwise specifically authorized by the
Board of Directors, all stock owned by the Corporation, other than stock of the
Corporation, shall be voted, in person or by proxy, by the President or any Vice
President of the Corporation on behalf of the Corporation.
ARTICLE VIII
AMENDMENTS
Section 1. Amendments. The vote of the holders of at least a majority of
the shares of stock of the Corporation, issued and outstanding and entitled to
vote, shall be necessary at any meeting of stockholders to amend or repeal these
By-Laws or to adopt new by-laws. Except as set forth in the immediately
preceding sentence, these By-Laws may also be amended or repealed, or new
by-laws adopted, at any meeting of the Board of Directors by the vote of at
least a majority of the entire Board; provided
12
<PAGE> 13
that any by-law adopted by the Board may be amended or repealed by the
stockholders in the manner set forth above.
Any proposal to amend or repeal these By-Laws or to adopt new by-laws shall
be stated in the notice of the meeting of the Board of Directors or the
stockholders, or in the waiver of notice thereof, as the case may be, unless all
of the directors or the holders of record of all of the shares of stock of the
Corporation, issued and outstanding and entitled to vote, are present at such
meeting.
13
<PAGE> 1
EXHIBIT T3C
Conformed Copy
PHILIP SERVICES CORPORATION
TO
WILMINGTON TRUST COMPANY
Trustee
Indenture
Dated as of April 7, 2000
$18,000,000
3% Convertible Subordinated Notes due April 15, 2020
<PAGE> 2
PHILIP SERVICES CORPORATION
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of April 7, 2000
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
--------------- ---------
<S> <C>
ss.310(a)(1) ............................................ 609
(a)(2) ............................................ 609
(a)(3) ............................................ Not Applicable
(a)(4) ............................................ Not Applicable
(b) ............................................ 608
............................................ 610
ss.311(a) ............................................ 613
(b) ............................................ 613
ss.312(a) ............................................ 701
............................................ 702
(b) ............................................ 702
(c) ............................................ 702
(b) ............................................ 703
(c) ............................................ 703
(d) ............................................ 703
ss.314(a) ............................................ 704
(a)(4) ............................................ 1020
(b) ............................................ Not Applicable
(c)(1) ............................................ 102
(c)(2) ............................................ 102
(c)(3) ............................................ Not Applicable
(d) ............................................ Not Applicable
(e) ............................................ 102
ss.315(a) ............................................ 601
(b) ............................................ 602
(c) ............................................ 601
(d) ............................................ 601
(d)(1) ............................................ 601
(e) ............................................ 514
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
--------------- ---------
<S> <C>
ss.316(a) ............................................ 101
(a)(l)(A) ............................................ 502
............................................ 512
(a)(l)(B) ............................................ 513
(a)(2) ............................................ Not Applicable
(b) ............................................ 508
ss.317(a)(1) ............................................ 503
(a)(2) ............................................ 504
(b) ............................................ 1003
ss.318(a) ............................................ 107
</TABLE>
___________
[FN]
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
</FN>
ii
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 1
Definitions and Other Provisions
of General Application
SECTION 101. Definitions................................................................................1
Act ................................................................................................2
Affiliate................................................................................................2
Asset Disposition........................................................................................2
Authenticating Agent.....................................................................................2
Authority................................................................................................2
Bank ................................................................................................3
beneficial owner.........................................................................................3
Board of Directors.......................................................................................3
Board Resolution.........................................................................................3
Business Day.............................................................................................3
Capital Stock............................................................................................3
Change of Control........................................................................................3
Closing Price Per Share..................................................................................3
Commission...............................................................................................3
Common Shares............................................................................................3
Common Stock.............................................................................................4
Company ................................................................................................4
Company Request..........................................................................................4
Company Order............................................................................................4
Consolidated Net Income..................................................................................4
Constituent Person.......................................................................................4
Conversion Agent.........................................................................................4
Conversion Date..........................................................................................4
Conversion Price.........................................................................................4
Corporate Trust Office...................................................................................4
corporation..............................................................................................4
Credit Agreement.........................................................................................5
Defaulted Interest.......................................................................................5
Deferral Period..........................................................................................5
Deferral Period Interest.................................................................................5
Deferred Interest........................................................................................5
Definitive Security......................................................................................5
Dollars ................................................................................................5
$ ................................................................................................5
</TABLE>
_____________
[FN]
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
</FN>
iii
<PAGE> 5
<TABLE>
<CAPTION>
Page
<S> <C>
Event of Default.........................................................................................5
Exchange Act.............................................................................................5
Exit Facility............................................................................................5
Expiration Date..........................................................................................5
generally accepted accounting principles.................................................................5
Holder ................................................................................................5
Indenture................................................................................................6
Initial Exit Facility....................................................................................6
Interest Payment Date....................................................................................6
Maturity ................................................................................................6
Nasdaq ................................................................................................6
Notice of Default........................................................................................6
Non-electing Share.......................................................................................6
NYSE ................................................................................................6
Offer ................................................................................................6
Offer Expiration Date....................................................................................6
Offer to Purchase........................................................................................6
Officers' Certificate....................................................................................6
Opinion of Counsel.......................................................................................6
Outstanding..............................................................................................6
Paying Agent.............................................................................................7
Permitted Holder.........................................................................................7
Plan ................................................................................................7
Person ................................................................................................7
Predecessor Security.....................................................................................7
Purchase Date............................................................................................7
Purchase Price...........................................................................................7
Redeemable Stock.........................................................................................8
Redemption Change of Control.............................................................................8
Redemption Date..........................................................................................8
Redemption Price.........................................................................................8
Reference Date...........................................................................................8
Regular Record Date......................................................................................8
Responsible Officer......................................................................................8
Securities...............................................................................................8
Security ................................................................................................8
Securities Act...........................................................................................8
Security Register........................................................................................9
Security Registrar.......................................................................................9
Senior Indebtedness......................................................................................9
Significant Subsidiary...................................................................................9
Special Record Date......................................................................................9
Stated Maturity..........................................................................................9
Subordinated Notes.......................................................................................9
Subsidiary...............................................................................................9
</TABLE>
____________
[FN]
Note: This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
</FN>
iv
<PAGE> 6
<TABLE>
<CAPTION>
Page
<S> <C>
Successor Security.......................................................................................9
Tendered Security........................................................................................9
Trading Days.............................................................................................9
Trust Indenture Act.....................................................................................10
Trustee ...............................................................................................10
United States...........................................................................................10
Vice President..........................................................................................10
Voting Stock............................................................................................10
Wholly Owned Subsidiary.................................................................................10
SECTION 102. Compliance Certificates and Opinions......................................................10
SECTION 103. Form of Documents Delivered to Trustee....................................................11
SECTION 104. Acts of Holders; Record Date..............................................................11
SECTION 105. Notices. Etc., to Trustee and Company.....................................................13
SECTION 106. Notice to Holders: Waiver.................................................................13
SECTION 107. Conflict with Trust Indenture Act.........................................................14
SECTION 108. Effect of Headings and Table of Contents..................................................14
SECTION 109. Successors and Assigns....................................................................14
SECTION 110. Separability Clause.......................................................................14
SECTION 111. Benefits of Indenture.....................................................................14
SECTION 112. Governing Law.............................................................................15
SECTION 113. Legal Holidays............................................................................15
SECTION 114. No Recourse Against Others................................................................15
SECTION 115. Multiple Originals........................................................................15
ARTICLE 2
Security Forms
SECTION 201. Forms Generally...........................................................................15
SECTION 202. Form of Face of Security..................................................................16
SECTION 203. Form of Reverse of Security...............................................................18
SECTION 204. Form of Trustee's Certificate of Authentication...........................................22
SECTION 205. Form of Conversion Notice. ...............................................................22
ARTICLE 3
The Securities
SECTION 301. Title and Terms...........................................................................22
SECTION 302. Denominations.............................................................................23
SECTION 303. Execution, Authentication, Delivery and Dating............................................23
SECTION 304. Temporary Securities......................................................................24
SECTION 305. Registration, Registration of Transfer and Exchange.......................................25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........................................25
SECTION 307. Payment of Interest; Interest Rights Preserved............................................26
SECTION 308. Persons Deemed Owners.....................................................................27
SECTION 309. Cancellation..............................................................................28
SECTION 310. Computation of Interest...................................................................28
</TABLE>
___________
[FN]
Note: This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
</FN>
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<TABLE>
<CAPTION>
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ARTICLE 4
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture...................................................28
SECTION 402. Application of Trust Money................................................................29
ARTICLE 5
Remedies
SECTION 501. Events of Default.........................................................................30
SECTION 502. Acceleration of Maturity; Rescission and Annulment........................................31
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................32
SECTION 504. Trustee May File Proofs of Claim..........................................................33
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...............................33
SECTION 506. Application of Money Collected............................................................33
SECTION 507. Limitation on Suits.......................................................................34
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest..........................35
SECTION 509. Restoration of Rights and Remedies........................................................35
SECTION 510. Rights and Remedies Cumulative............................................................35
SECTION 511. Delay or Omission Not Waiver..............................................................35
SECTION 512. Control by Holders........................................................................36
SECTION 513. Waiver of Past Defaults...................................................................36
SECTION 514. Undertaking for Costs.....................................................................36
SECTION 515. Waiver of Stay or Extension Laws..........................................................36
ARTICLE 6
The Trustee
SECTION 601. Certain Duties and Responsibilities.......................................................37
SECTION 602. Notice of Defaults........................................................................38
SECTION 603. Certain Rights of Trustee.................................................................38
SECTION 604. Not Responsible for Recitals or Issuance of Securities....................................39
SECTION 605. May Hold Securities.......................................................................39
SECTION 606. Money Held in Trust.......................................................................39
SECTION 607. Compensation and Reimbursement............................................................39
SECTION 608. Disqualification: Conflicting Interests...................................................40
SECTION 609. Corporate Trustee Required; Eligibility...................................................40
SECTION 610. Resignation and Removal; Appointment of Successor.........................................40
SECTION 611. Acceptance of Appointment by Successor....................................................41
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...............................42
SECTION 613. Preferential Collection of Claims Against Company.........................................42
SECTION 614. Appointment of Authenticating Agent.......................................................42
</TABLE>
____________
[FN]
Note: This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
</FN>
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<TABLE>
<CAPTION>
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ARTICLE 7
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.................................44
SECTION 702. Preservation of Information; Communications to Holders....................................44
SECTION 703. Reports by Trustee........................................................................44
SECTION 704. Reports by Company........................................................................45
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms.......................................45
SECTION 802. Successor Substituted.....................................................................45
ARTICLE 9
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders........................................46
SECTION 902. Supplemental Indentures with Consent of Holders...........................................46
SECTION 903. Execution of Supplemental Indentures......................................................47
SECTION 904. Effect of Supplemental Indentures.........................................................47
SECTION 905. Conformity with Trust Indenture Act.......................................................47
SECTION 906. Reference in Securities to Supplemental Indentures........................................48
ARTICLE 10
Covenants
SECTION 1001. Payment of Principal and Interest........................................................48
SECTION 1002. Maintenance of Office or Agency..........................................................48
SECTION 1003. Money for Security Payments to be Held in Trust..........................................48
SECTION 1004. Existence................................................................................49
SECTION 1005. Maintenance of Properties................................................................50
SECTION 1006. Payment of Taxes and Other Claims........................................................50
SECTION 1007. Registration and Listing.................................................................50
SECTION 1008. Limitation on Restricted Payments........................................................51
SECTION 1009. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.............................................................52
SECTION 1010. Limitation on Distributions of Assets to Shareholders....................................52
SECTION 1011. Statement By Officers as to Default; Compliance Certificates.............................53
SECTION 1012. Waiver of Certain Covenants..............................................................53
SECTION 1013. Indemnification of Judgment Currency.....................................................53
SECTION 1014. Available Information....................................................................54
SECTION 1015. Acquisition of Securities................................................................54
</TABLE>
________________
[FN]
Note: This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
</FN>
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<TABLE>
<CAPTION>
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ARTICLE 11
Redemption of Securities
SECTION 1101. Right of Redemption......................................................................54
SECTION 1102. Applicability of Article.................................................................54
SECTION 1103. Notices to Trustee.......................................................................54
SECTION 1104. Selection by Trustee of Securities to Be Redeemed........................................55
SECTION 1105. Notice of Redemption.....................................................................55
SECTION 1106. Deposit of Redemption Price..............................................................56
SECTION 1107. Securities Payable on Redemption Date....................................................56
SECTION 1108. Securities Redeemed in Part..............................................................56
ARTICLE 12
Conversion of Securities
SECTION 1201. Conversion Privilege and Conversion Price................................................57
SECTION 1202. Exercise of Conversion Privilege.........................................................57
SECTION 1203. Fractions of Shares......................................................................58
SECTION 1204. Adjustment of Conversion Price...........................................................58
SECTION 1205. Notice of Adjustments of Conversion Price................................................60
SECTION 1206. Notice of Certain Corporate Action.......................................................60
SECTION 1207. Company to Reserve Common Shares.........................................................61
SECTION 1208. Taxes on Conversions.....................................................................61
SECTION 1209. Covenant as to Common Shares.............................................................61
SECTION 1210. Cancellation of Converted Securities.....................................................62
SECTION 1211. Provision in Case of Consolidation, Merger or Sale of Assets.............................62
SECTION 1212. Issuance of Rights, Options or Warrants..................................................62
SECTION 1213. Responsibility of Trustee................................................................63
ARTICLE 13
Subordination of Securities
SECTION 1301. Securities Subordinated to Senior Indebtedness...........................................63
SECTION 1302. No Payments in Certain Circumstances;
Payment Over of Proceeds Upon Dissolution, Etc...................................64
SECTION 1303. Notice to Trustee of Specified Events;
Reliance on Certificate of Liquidating Agent.....................................65
SECTION 1304. Trustee to Effectuate Subordination......................................................66
SECTION 1305. Trustee Not Charged with Knowledge of Prohibition........................................66
SECTION 1306. Trustee Not Fiduciary for Holders of Senior Indebtedness.................................67
SECTION 1307. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights. .........................67
SECTION 1308. Article Applicable to Paying Agents......................................................67
SECTION 1309. Certain Conversions Deemed Payment.......................................................67
</TABLE>
___________
[FN]
Note: This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
</FN>
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ARTICLE 14
Change of Control
SECTION 1401. Change of Control........................................................................68
SECTION 1402. Certain Definitions......................................................................68
SECTION 1403. Deferral Period..........................................................................71
RECITALS OF THE COMPANY................................................................................. 1
TESTIMONIUM
SIGNATURES
ANNEXES
Annex A-1 Form of Conversion Notice A-1-1
</TABLE>
___________
[FN]
Note: This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
</FN>
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<PAGE> 11
INDENTURE, dated as of April 7, 2000 between Philip Services Corporation, a
corporation duly organized and existing under the laws of Delaware (herein
called the "Company"), having its principal office at 100 King Street West,
Hamilton, Ontario, Canada L8N 4T6 and Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of the State of Delaware,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 3%
Convertible Subordinated Notes due April 15, 2020 of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States (whether or not such is indicated herein),
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
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generally accepted in the United States as consistently applied by the
Company at the date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section", or to an "Annex" or a "Schedule", refers to an
Article or Section of, or to an Annex or a Schedule attached to, this
Indenture, as the case may be;
(5) unless the context otherwise requires, any reference to a statute,
rule or regulation refers to the same (including any successor statute,
rule or regulation thereto) as it may be amended from time to time;
(6) unless otherwise specifically set forth herein, all calculations
or determinations of a Person shall be performed or made on a consolidated
basis in accordance with generally accepted accounting principles; and
(7) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Asset Disposition" means any transfer, conveyance, sale, lease or other
disposition by the Company or any of its Subsidiaries (including a consolidation
or merger or other sale of any such Subsidiary with, into or to another Person
in a transaction in which such Subsidiary ceases to be a Subsidiary, but
excluding a disposition by a Subsidiary of the Company to the Company or a
Wholly Owned Subsidiary of the Company or by the Company to a Wholly Owned
Subsidiary of the Company) of (i) shares of Capital Stock (other than directors'
qualifying shares) or other ownership interests of a Subsidiary of the Company,
(ii) substantially all of the assets of the Company or any of its Subsidiaries
representing a division or line of business or (iii) other assets or rights of
the Company or any of its Subsidiaries outside of the ordinary course of
business, provided in each of the foregoing instances that the aggregate
consideration for such transfer, conveyance, sale, lease or other disposition is
equal to $10 million or more.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities.
"Authority" means any federal, state, provincial, municipal, or local
government or quasi-governmental agency or authority.
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<PAGE> 13
"Bank" means a "bank" as defined in section 3(a)(6) of the Exchange Act as
well as any other financial institution, foreign or otherwise, a substantial
portion of the business of which consists of receiving deposits or exercising a
fiduciary power similar to those permitted to national banks under the authority
of the Comptroller of the Currency pursuant to the first section of Public Law
87-722.
"beneficial owner" has the meaning specified in Section 1402(1).
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board authorized to act for it in respect
hereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York, New
York or Wilmington, Delaware are authorized or obligated by law or executive
order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"Change of Control" has the meaning specified in Section 1402(2).
"Closing Price Per Share" means, with respect to a class of Common Stock of
the Company, for any day, the reported last sales price regular way per share of
such class or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in either case
(i) on the NYSE or, if such class of Common Stock is not quoted, listed or
admitted to trading on the NYSE, on the principal (as determined by the
Company's Board of Directors) United States or Canadian national securities
exchange or Nasdaq on which such class of Common Stock is quoted, listed or
admitted to trading or (ii) if not quoted on the NYSE or listed or admitted to
trading on any United States or Canadian national securities exchange or Nasdaq,
the average of the closing bid and asked prices in the over-the-counter market
as furnished by any New York Stock Exchange member firm selected from time to
time by the Company for that purpose or (iii) if not so available in either
manner set forth in (i) or (ii), as otherwise determined in good faith by the
Board of Directors.
"Commission" means the United States Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Shares" means the shares of Common Stock, $0.01 par value per
share, of the Company authorized at the date of this instrument as originally
executed. Subject to the provisions of Section 1211, shares issuable upon
conversion of Securities shall include only Common Shares or shares of any class
or classes of Common Stock resulting from any
3
<PAGE> 14
reclassification thereof; provided, however, that if at any time as a result of
such reclassification there shall be more than one such resulting class, the
shares so issuable upon conversion of Securities shall include shares of all
such classes, and the number of shares of each such class then so issuable shall
be in the same proportion which the total number of shares of such class
resulting from such reclassification bears to the total number of shares of such
classes resulting from such reclassification.
"Common Stock" means the Common Shares, together with any other class of
capital stock of the Company which has no preference in respect of dividends or
of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not subject to redemption
by the Company.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture and thereafter "Company" shall mean such
successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Vice President, Finance, its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Consolidated Net Income" for any period means the consolidated net income
(or loss) of the Company and its Subsidiaries for such period determined on a
consolidated basis in accordance with generally accepted accounting principles;
provided that there shall be excluded therefrom (a) gains or losses on Asset
Dispositions by the Company or its Subsidiaries, (b) all extraordinary gains and
extraordinary losses, and (c) the tax effect of any of the items described in
clauses (a) and (b) above.
"Constituent Person" has the meaning specified in Section 1211.
"Conversion Agent" means any Person authorized by the Company to convert
Securities in accordance with Article Thirteen. The Company has initially
appointed the Trustee as its Conversion Agent in the Borough of Manhattan, The
City of New York.
"Conversion Date" has the meaning specified in Section 1202.
"Conversion Price" has the meaning specified in Section 1201.
"Corporate Trust Office" means the office of the Trustee in the City of
Wilmington, Delaware, which office at the date of this Indenture is located at
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Corporate Trust Administration, at which at any particular time its
corporate trust business may be administered.
"corporation" means a corporation, association, company, joint-stock
company, limited liability company, partnership or business trust.
4
<PAGE> 15
"Credit Agreement" means the Secured PIK/Term Credit Agreement, dated as of
April 7, 2000, among the Company, Subsidiaries of the Company named therein,
Canadian Imperial Bank of Commerce as administrative agent and the various
persons from time to time parties to such agreement as lenders providing for the
PIK Loans and the Term Loans (as such terms are defined in such agreement), as
the same may be amended, renewed, extended, refinanced, replaced or refunded
from time to time, together with any documents entered into in connection
therewith, including collateral agency and intercreditor agreements.
"Defaulted Interest" has the meaning specified in Section 307.
"Deferral Period", in connection with a Change of Control, means the period
commencing on the date of the Indenture and ending on the earliest to occur of
(i) the stated maturity of the Initial Exit Facility; (ii) the acceleration of
amounts due under the Initial Exit Facility and written notice of which is
received by the Trustee; and (iii) the refinancing or replacement of the Initial
Exit Facility, which refinancing or replacement is consummated substantially
concurrently with the Change of Control and written notice of which is received
by the Trustee.
"Deferral Period Interest" has the meaning specified in Section 301.
"Deferred Interest" has the meaning specified in Section 301.
"Definitive Security" means any Security other than a Global Security.
"Dollars" and "$" means such coins or currency of the United States of
America which is legal tender for payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may be
amended and any successor act thereto.
"Exit Facility" means the loan agreement, dated as of April 7, 2000, among
the Company, Subsidiaries of the Company named therein, Foothill Capital
Corporation as arranger and administrative agent, and the various persons from
time to time party to such agreement as lenders, as the same may be amended,
renewed, extended, refinanced, replaced or refunded from time to time, together
with any documents entered into in connection therewith, including collateral
agency and intercreditor agreements.
"Expiration Date" has the meaning specified in Section 104.
"generally accepted accounting principles" means, as at any date of
determination, generally accepted accounting principles in the United States
(unless otherwise indicated) and which are applicable as of the date of
determination.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
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<PAGE> 16
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof including, for
all purposes of this instrument and any such supplemental indenture, the Annexes
attached to this instrument.
"Initial Exit Facility" means the Exit Facility as executed on April 7,
2000, which facility has a stated maturity of September 30, 2002.
"Interest Payment Date" means the Stated Maturity of an instalment of
interest on the Securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Nasdaq" means the Nasdaq National Market and The Nasdaq SmallCap Market.
"Notice of Default" means a written notice of the kind specified in Section
501(5).
"Non-electing Share" has the meaning specified in Section 1211.
"NYSE" means the New York Stock Exchange.
"Offer" has the meaning specified in Section 1402(3).
"Offer Expiration Date" has the meaning specified in Section 1402(4).
"Offer to Purchase" has the meaning specified in Section 1402(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are
6
<PAGE> 17
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities are present or have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such determination as to the presence of
a quorum or any such request, demand, authorization, direction, notice, consent
or waiver or other action, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Permitted Holder" means any Person that beneficially owns more than 10% of
the outstanding Common Shares as of the date of this Indenture, after giving
effect to the distributions of Common Shares under the Plan.
"Plan" means the First Amended Joint Plan of Reorganization of Philip
Services (Delaware), Inc., et al , dated September 21, 1999, in the United
States Bankruptcy Court for the District of Delaware.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company, unincorporated organization or government or
any agency or political subdivision thereof. For purposes of Article 14,
"Person" has the meaning specified in Section 1402(6).
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Purchase Date" has the meaning specified in Section 1402(5).
"Purchase Price" has the meaning specified in Section 1402(7).
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<PAGE> 18
"Redeemable Stock" of any Person means any Capital Stock of such Person
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or otherwise (including upon the occurrence of
an event) matures or is required to be redeemed (pursuant to any sinking fund
obligation or otherwise) or is convertible into or exchangeable for indebtedness
or is redeemable at the option of the holder thereof, in whole or in part, at
any time prior to the final Stated Maturity of the Securities;
a "Redemption Change of Control" shall be deemed to have occurred (unless
the Company is discharged from its obligations with respect to the Securities in
accordance with Article 4) at the time, after the original issuance of the
Securities, of: (i) an event or series of events by which any Person or other
entity or Group of Persons shall, as a result of (A) a tender or exchange offer,
open market purchases or privately negotiated purchases, or (B) a merger,
consolidation or otherwise, have become the beneficial owner of more than 50% of
the aggregate voting power of all classes of Voting Stock of the Company; or
(ii) the Company is consolidated with or merged into another corporation with
the effect that immediately after such transaction the shareholders of the
Company immediately prior to such transaction beneficially own less than a
majority of the voting power of all classes of Voting Stock of the Person
surviving such transaction.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Reference Date" has the meaning specified in Section 1204(3).
"Regular Record Date" for the interest payable on any Interest Payment Date
means the April 1 or October 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" or "Security" means securities designated in the first
paragraph of the RECITALS OF THE COMPANY.
"Securities Act" means the U.S. Securities Act of 1933 and (unless the
context otherwise requires) includes the rules and regulations of the Commission
promulgated thereunder.
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<PAGE> 19
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" has the meaning specified in Section 1301.
"Significant Subsidiary" means, at any date of determination, (a) any
Subsidiary of the Company that, together with any of its Subsidiaries (i)
for the most recent fiscal year of the Company accounted for more than 15%
of the consolidated revenues of the Company and its Subsidiaries or (ii) as
of the end of such fiscal year, owned more than 15% of the consolidated
assets of the Company and its Subsidiaries, all as set forth on the
consolidated financial statements of the Company and its Subsidiaries for
such year prepared in accordance with generally accepted accounting
principles.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such
installment of interest is due and payable.
"Subordinated Notes" means the 6% Subordinated Notes due April 15,
2010 of the Company.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the combined voting power of the outstanding Voting Stock of which is
owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof, (ii) any other Person (other than a corporation) in which such
Person, or one or more other Subsidiaries of such Person or such Person and
one or more other Subsidiaries thereof, directly or indirectly, has at
least a majority ownership and power to direct the policies, management and
affairs thereof or (iii) any other Person not described in clauses (i) and
(ii) above in which such Person, or one more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly
or indirectly, has a 50% ownership and the power, pursuant to a written
contract or agreement, to direct the policies and management or the
financial and other affairs thereof.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Tendered Security" has the meaning specified in Section 301.
"Trading Days" of a class of Common Stock means (i) if such class of
Common Stock is quoted on Nasdaq or on any United States national
securities exchange, days on which Nasdaq or such national securities
exchange is open for business; (ii) if such class of Common Stock is quoted
on a system of automated dissemination of quotations of securities prices,
days on which
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<PAGE> 20
trades may be effected through such system; or (iii) if such class of
Common Stock is not listed or admitted for trading on the Nasdaq or other
United States national securities exchange or quoted on any system of
automated dissemination of quotation of securities prices, days on which
such class of Common Stock is traded regular way in the over-the-counter
market and for which a closing bid and a closing asked price for such class
of Common Stock are available.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 905; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean such successor Trustee.
"United States" means the United States of America (including the
States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only
so long as no senior class of securities has such voting power by reason of
any contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned
by such Person or by one or more Wholly Owned Subsidiaries of such Person
or by such Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
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<PAGE> 21
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with (which, in the case of an Opinion of Counsel may be
limited to reliance on an Officers' Certificate as to matters of fact); and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Date.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose
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<PAGE> 22
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, provided that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such matter referred to in the
foregoing sentence, the record date for any such matter shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in Section 502, (iii) any request to institute proceedings referred to in
Section 507(2) or (iv) any direction referred to in Section 512. If any record
date is set pursuant to this paragraph, the Holders of Outstanding Securities on
such record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders remain
Holders after such record
12
<PAGE> 23
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Company's expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of Securities in the
manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities in the manner set forth in Section 106, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto which
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. Notices. Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee and received at its Corporate Trust Office or to it
at Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders: Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage
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<PAGE> 24
prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
Until such time as this Indenture shall be qualified under the Trust
Indenture Act, this Indenture, the Company and the Trustee shall be deemed for
all purposes hereof to be subject to and governed by the Trust Indenture Act to
the same extent as would be the case if this Indenture were so qualified on the
date hereof. If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture. The provisions of Article Thirteen are
intended to be for the benefit of, and shall be enforceable directly by, the
holders of Senior Indebtedness.
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<PAGE> 25
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Purchase Date
or Stated Maturity of any Security or the last day on which a Holder of a
Security has a right to convert his Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or conversion of such security need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date, Redemption Date, or
Purchase Date, or at the Stated Maturity, provided, that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date, or Purchase Date, or Stated Maturity or last day for conversion, as the
case may be.
SECTION 114. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder shall waive
and release all such liability. Such waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 115. Multiple Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
ARTICLE 2
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The conversion notice shall be in substantially the form set forth in the
Annex to the Indenture.
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<PAGE> 26
Securities shall be issued in definitive, fully registered form without
interest coupons, substantially in the form of Security set forth in Sections
202 and 203. The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, provided that such manner is
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202. Form of Face of Security.
PHILIP SERVICES CORPORATION
3% Convertible Subordinated Notes due April 15, 2020
CUSIP No. 718193 AB 1
No._________________ $_________________
Philip Services Corporation a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to __________, or registered assigns, the
principal sum of __________ Dollars on April 15, 2020, and to pay interest from
April 15, 2003 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on April 15 and October 15 in
each year, commencing October 15, 2003, (a) at the rate of 3% per annum on the
principal amount, until the principal hereof is paid or made available for
payment, or (b) (i) if a Change of Control occurs during a Deferral Period, (ii)
this Security has been tendered and not withdrawn pursuant to an Offer to
Purchase prior to the close of business on the Offer Expiration Date, and (iii)
the Company has not purchased this Security pursuant to Section 1403 of the
Indenture (a "Tendered Security"), at the rate of 12% per annum on the Purchase
Price of this Security from the day after the Offer Expiration Date until the
termination of the Deferral Period ("Deferral Period Interest"); provided that,
for greater certainty, interest payable after the termination of the Deferral
Period shall be payable on the full principal amount hereof.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the April 1 or October 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest, other than Deferral Period Interest, not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Interest on this Security shall be computed on the basis set forth in the
Indenture.
One half of the Deferral Period Interest will accrue on the Purchase Price
of this Security and be paid in cash on the Interest Payment Date to the Person
in whose name this Security (or one or more
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<PAGE> 27
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. The other half of the Deferral Period Interest
will accrue on the Purchase Price of this Security until the termination of the
Deferral Period but will only be paid in cash on the fifth Business Day after
the termination of the Deferral Period to the Person in whose name this Security
(or one or more Predecessor Securities) is registered ("Deferred Interest") on
the date of such termination. The Company's obligation to pay Deferral Period
Interest shall at all times be limited by and subject to the provisions of
Article 13 of the Indenture.
Payment of the principal of and interest on this Security will be made at
the office or agency of the Company maintained for that purpose in the City of
Wilmington, Delaware and at any other office or agency maintained by the Company
for such purpose, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made by check, mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
PHILIP SERVICES CORPORATION
[CORPORATE SEAL]
By: ___________________________
Name:
Title:
Attest:
________________________
Name:
Title:
17
<PAGE> 28
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 3% Convertible Subordinated Notes due April 15, 2020
(herein called the "Securities"), limited in aggregate principal amount to
$18,000,000, issued and to be issued under an Indenture, dated as of April 7,
2000 (herein called the "Indenture"), between the Company and Wilmington Trust
Company, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
Upon the occurrence of a Redemption Change of Control, the Securities are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, as a whole or in part, at the election of the Company, at a Redemption
Price equal to 100% of the principal amount then outstanding, together in the
case of any such redemption with accrued interest to but excluding the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates referred to on the face hereof, all as provided in
the Indenture.
Subject to and upon compliance with the provisions of the Indenture, the
Holder of this Security is entitled, at its option, at any time, or in case this
Security or a portion hereof is called for redemption or the Holder hereof has
tendered this Security or a portion thereof to an Offer to Purchase, then in
respect of this Security until and including, but (unless the Company defaults
in making the payment due upon redemption or purchase, as the case may be) not
after, the close of business on the Redemption Date or the Purchase Date, as the
case may be, to convert this Security (or any portion of the principal amount
hereof that is an integral multiple of $1.00), into fully paid and nonassessable
Common Shares of the Company at an initial Conversion Price of $30.00 for each
Common Share (or at the current adjusted Conversion Price if an adjustment has
been made as provided in the Indenture) by surrender of this Security, duly
endorsed or assigned to the Company or in blank and, in case such surrender
shall be made during the period from the close of business of any Regular Record
Date next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date ("Interest Period") (except Securities called for
redemption on a Redemption Date or to be purchased on a Purchase Date during, in
each case, such Interest Period), also accompanied by payment in same day or
other funds acceptable to the Company of an amount equal to the interest payable
on such Interest Payment Date on the principal amount of this Security then
being converted, and also the conversion notice hereon duly executed, to the
Company at the Corporate Trust Office of the Trustee, or at such other office or
agency of the Company, subject to any laws or regulations applicable thereto and
subject to the right of the Company to terminate the appointment of any
Conversion Agent as may be designated by it for such purpose in the City of
Wilmington, Delaware, or at such other offices or agencies as the Company may
designate (each a Conversion Agent). Subject to the aforesaid requirement for
payment and, in the case of a conversion after the Regular Record Date next
preceding any Interest Payment Date and on or before such Interest Payment Date,
to the right of the Holder of this Security (or any Predecessor Security) of
record at such Regular Record Date to receive an installment of interest, no
cash payment or adjustment is to be made on conversion, if the date of
conversion is not an Interest Payment Date, for interest accrued hereon from the
Interest Payment Date next preceding the date of conversion, or for dividends on
the Common Shares issued on conversion hereof. The Company shall thereafter
deliver to the Holder the fixed number of shares of Common Shares (together with
any cash adjustment, as provided in the Indenture) into which this Security is
convertible and such delivery will be deemed to satisfy the
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<PAGE> 29
Company's obligation to pay the principal amount of this Security. No fractions
of shares or scrip representing fractions of shares will be issued on
conversion, but instead of any fractional interest (calculated to the nearest
1/100th of a share) the Company shall pay a cash adjustment as provided in the
Indenture. The Conversion Price is subject to adjustment as provided in the
Indenture. In addition, the Indenture provides that in case of certain
amalgamations, consolidations or mergers to which the Company is a party or the
transfer of all or substantially all of the property and assets of the Company,
the Indenture shall be amended, without the consent of any holders of
Securities, so that this Security, if then Outstanding, will be convertible
thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger or transfer by a holder of the number
of Common Shares of the Company into which this Security could have been
converted immediately prior to such consolidation, merger or transfer. No
adjustment in the Conversion Price will be made until the cumulative effect of
all such adjustments would require an increase or decrease of at least one
percent of such price, provided that any adjustment that would otherwise be made
will be carried forward and taken into account in the computation of any
subsequent adjustment.
The Indenture provides that, subject to certain conditions, if a Change of
Control occurs, the Company shall be required to make an Offer to Purchase for
all of the Securities at the following prices (expressed as percentages of the
principal amount) if the Purchase Date is during the 12-month period beginning
April 15 of each of the years indicated below:
<TABLE>
<CAPTION>
Purchase
Year Price
---- -----
<S> <C>
2000 64.45915%
2001 68.32670%
2002 72.42630%
2003 76.77187%
2004 81.37819%
2005 86.26088%
2006 88.84870%
2007 91.51417%
2008 94.25959%
2009 97.08738%
</TABLE>
and thereafter at a price equal to 100% of the principal amount, in each case
plus accrued interest to the Purchase Date (provided, however, that installments
of interest whose Stated Maturity is on or prior to the Purchase Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates).
In the event of redemption, purchase or conversion of this Security in part
only, a new Security or Securities for the unredeemed, unpurchased or
unconverted portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
The indebtedness evidenced by this Security is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness of the Company, and this
Security is issued subject to such provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or
19
<PAGE> 30
appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed or to convert this Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1.00 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months.
20
<PAGE> 31
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Print or type assignee's Social Security or other identifying number)
and irrevocably appoint_________________________________________________________
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.
Dated:_______________________ Signature:_________________________
(Sign exactly as your
name appears on the face
of this Security)
Signature
Guarantee:_________________________
Note: Signature must be guaranteed by an institution which is a member of the
following recognized signature guarantee programs: (i) the Securities Transfer
Agent Medallion Program, (ii) the New York Stock Exchange Medallion Program,
(iii) the Stock Exchange Medallion Program or (iv) another guarantee program
reasonably acceptable to the Trustee, if Securities are to be delivered other
than to and in the name of the registered owner.
21
<PAGE> 32
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY
in its capacity as Trustee
By:_________________________________
Authorized Signatory
SECTION 205. Form of Conversion Notice.
The form of conversion notice is attached as Annex A-1 hereto.
ARTICLE 3
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $18,000,000, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306, 906,
1108, 1202 or in connection with an Offer to Purchase pursuant to Section 1401.
The Securities shall be known and designated as the "3% Convertible Notes
due April 15, 2020" of the Company. Their Stated Maturity shall be April 15,
2020 and they shall bear interest (a) at the rate of 3% per annum on the
principal amount, from April 15, 2003 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, as the case may be,
payable semi-annually on April 15 and October 15, commencing October 1, 2003,
until the principal thereof is paid or made available for payment, or (b)(i) if
a Change of Control occurs during the Deferral Period, (ii) a Security has been
tendered and not withdrawn pursuant to an Offer to Purchase prior to the close
of business on the Offer Expiration Date, and (iii) the Company has not
purchased such Security pursuant to Section 1403 (a "Tendered Security"), at the
rate of 12% per annum on the Purchase Price of such Security from the day after
the Offer Expiration Date until the termination of the Deferral Period
("Deferral Period Interest"); provided that, for greater certainty, interest
payable after the termination of the Deferral Period shall be payable on the
full principal amount of the Securities.
One half of the Deferral Period Interest payable on a Tendered Security
will accrue on the Purchase Price of such Security and be paid in cash on the
Interest Payment Date to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. The other half of the Deferral Period Interest
will accrue on the Purchase Price of such Security until the termination of the
Deferral Period but will only be paid in cash on
22
<PAGE> 33
the fifth Business Day after the termination of the Deferral Period to the
Person in whose name such Tendered Security (or one or more Predecessor
Securities) is registered ("Deferred Interest") on the date of such termination.
The Company's obligation to pay Deferral Period Interest shall at all times be
limited by and subject to the provisions of Article 13.
The principal of and interest on the Securities shall be payable at the
office or agency of the Company in the City of Wilmington, Delaware maintained
for such purpose or at any other office or agency maintained by the Company for
such purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be convertible as provided in Article Twelve.
The Securities shall be subordinated in right of payment to Senior
Indebtedness of the Company as provide in Article Thirteen.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1.00 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under a facsimile of
its corporate seal reproduced thereon attested by its Secretary. The signature
of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities and an Opinion of Counsel in form and substance
satisfactory to the Trustee, to the effect that (1) this Indenture has been
qualified under the Trust Indenture Act, (2) all legally required proceedings by
the Company in connection with the authorization and issuance of the Securities
have been duly taken and all orders, consents or other authorizations or
approvals legally required for the validity of the Securities have been
obtained, (3) the Securities have been duly authorized and executed and when
authenticated in accordance with the terms of this Indenture will be legal,
valid and binding obligations of the Company enforceable in accordance with
their terms (subject to normal bankruptcy exceptions) and entitled to the
benefits of this Indenture, and (4) the stockholders of the Company do not have
pre-emptive rights with respect to the Common Stock to be issued upon the
conversion of the Securities and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise.
23
<PAGE> 34
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
In case the Company, pursuant to Article Eight, shall be consolidated or
merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of substantially all of its properties and assets to any
Person, and the successor Person resulting from such consolidation, or surviving
such merger, or into which the Company shall have been merged, or the successor
Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee upon Company Order of the
successor Person, shall authenticate and deliver replacement Securities as
specified in such request for the purpose of such exchange. If replacement
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of any Holder but without expense to such Holder, shall provide for the
exchange of all Securities at the time outstanding held by such Holder for
Securities authenticated and delivered in such new name.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
24
<PAGE> 35
SECTION 305. Registration, Registration of Transfer and Exchange.
(a) Registration, Registration of Transfer and Exchange Generally. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 1002 being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers and exchanges of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers and exchanges of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an office or
agency of the Company designated pursuant to Section 1002 for such purpose, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, and subject to the other provisions of this
Section 305, Securities may be exchanged for other Securities of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, and subject to the other provisions of this Section
305, the Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1108, 1202 or 1401.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
25
<PAGE> 36
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the mutilation, destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may, but
subject to any conversion rights, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Subject to the provisions of Article 13 hereof, interest , other than
Deferred Interest, on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. Deferred
Interest on any Security which is payable, and is punctually paid or duly
provided for, shall be paid on the fifth Business Day after the termination of
the Deferral Period to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the date of
such termination.
Any interest, other than Deferral Period Interest, on any Security which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same
26
<PAGE> 37
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and (subject to Section
307) interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
27
<PAGE> 38
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, purchase, registration
of transfer or exchange or conversion shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company shall deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures and certification of their disposal delivered to the
Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE 4
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, or registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, upon a Company Order
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture (including, but not
limited to, Article Twelve hereof), when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable (whether on the Purchase Date,
upon an election by a Holder to convert its Securities or otherwise),
or
(ii) will become due and payable at their Stated Maturity within
one year, or
28
<PAGE> 39
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and interest to the date
of such deposit (in the case of Securities which have become due and
payable) or to the Purchase Date, Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee.
All moneys deposited with the Trustee pursuant to Section 401 (and held by
it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
All moneys held pursuant to this Article shall not be subject to the claims
of the holders of Senior Indebtedness under Article Thirteen.
29
<PAGE> 40
ARTICLE 5
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means (subject to Section 1302)
any one of the following events (whatever the reason for such Event of Default
and whether it shall be occasioned by the provisions of Article Fourteen or be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(2) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(3) default in the payment of principal and interest on Securities
required to be purchased pursuant to an Offer to Purchase as described
under Section 1401 when due and payable; or
(4) default in the performance, or breach, of Section 801; or
(5) default in the performance, or breach, of any covenant of the
Company in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 30 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(6) a default under the terms of the Subordinated Notes, which default
results in the acceleration of the payment of all or any portion of such
indebtedness; or
(7) a default under the terms of any instrument evidencing or securing
indebtedness for money borrowed by the Company or any Significant
Subsidiary having an outstanding principal amount of $50 million, which
default results in the acceleration of the payment of all or any portion of
such indebtedness; or
(8) a final judgment or final judgments for the payment of money are
entered against the Company or any Significant Subsidiary in an aggregate
amount of $35 million or more in excess of the amount covered by insurance,
by a court or courts of competent jurisdiction, which judgments become
liens and remain undischarged or unbonded for a period (during which
execution shall not be effectively stayed) of 60 days after the right to
appeal all such judgments have expired; or
(9) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under
30
<PAGE> 41
any applicable U.S. Federal or State, Canadian Federal or Provincial or
other applicable bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any Significant Subsidiary under any
applicable U.S. Federal or State, Canadian Federal or Provincial or other
applicable law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any
Significant Subsidiary or of any substantial part of the property of the
Company or any Significant Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary,
and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 90 consecutive
days; or
(10) the commencement by the Company or any Significant Subsidiary of
a voluntary case or proceeding under any applicable U.S. Federal or State,
Canadian Federal or Provincial or other applicable bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by the Company or
any Significant Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Significant Subsidiary in an involuntary case
or proceeding under any applicable U.S. Federal or State, Canadian Federal
or Provincial or other applicable bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against the Company or any Significant Subsidiary, or
the filing by the Company of a petition or answer or consent seeking
reorganization or relief under any applicable U.S. Federal or State,
Canadian Federal or Provincial or other applicable law, or the consent by
the Company or any Significant Subsidiary to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or any Significant Subsidiary or of any substantial part of the
property of the Company or any Significant Subsidiary, or the making by the
Company or any Significant Subsidiary of an assignment for the benefit of
creditors, or the admission by the Company or any Significant Subsidiary in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company or any Significant Subsidiary
in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
501(9) or (10)) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable (i) with respect to an Event of Default other than an Event of
Default specified in Section 501(2) with respect to Deferral Period Interest,
immediately, and (ii) with respect to an Event of Default specified in Section
501(2) with respect to Deferral Period Interest, upon termination of the
Deferral Period, in each case by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal and
any accrued interest shall become immediately due and payable; provided,
however, that so long as the Credit Agreement or Exit Facility shall be in full
force and effect, if an Event of Default shall have occurred and be continuing
(other than an Event of Default specified in Section 501(9) or (10)), the
Securities shall not become due and payable until the earlier to occur of (x)
twenty days following delivery of written notice of such acceleration of the
Securities to the agent under each of the Credit Agreement or the Exit Facility
or (y) the acceleration (ipso facto or otherwise) of any indebtedness under the
Credit Agreement and the Exit Facility, as applicable.
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If an Event of Default specified in Section 501(9) or (10) occurs, the
principal of and any accrued interest on the Securities then Outstanding shall
ipso facto become immediately due and payable without any declaration or other
Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) All overdue interest on all Outstanding Securities,
(B) the principal of any Outstanding Securities which have become
due otherwise than by such declaration of acceleration and, to the
extent that payment of such interest is lawful, interest thereon at
the rate provided by the Outstanding Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of any Security at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at the rate provided by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding and to
participate as a member, voting otherwise, of any committee of creditors
appointed in such matter. In particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of
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principal or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the extent provided in Article Thirteen, to the holders of
Senior Indebtedness in accordance with Article Thirteen; and
THIRD: To the payment of the amounts then due and unpaid for principal
of and interest on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Notwithstanding anything contained herein to the contrary, at any time when
the Company is prohibited from making any payment of principal of or interest on
the Securities as described in Article 13, neither the Trustee nor the Holders
may (A) accelerate the maturity of the principal of or accrued interest on the
Securities (unless, with respect to this clause (A) only, the payment of the
aggregate indebtedness under the Credit Agreement or the Exit Facility shall
have been accelerated), (B) commence any action or
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proceeding (including the right to set off) to collect payment of the principal
of or accrued interest on the Securities, or (C) commence an involuntary case or
proceeding in bankruptcy against the Company or seek the appointment of a
receiver, custodian or trustee with respect to the assets of the Company;
provided that the restrictions set forth in the foregoing clauses (A), (B), and
(C) shall not apply upon the commencing of any bankruptcy, dissolution, winding
up, liquidation or reorganization of the Company by any Persons other than the
Trustee or the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest.
Subject to Article Thirteen hereof and the last paragraph of Section 507
hereof, notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and (subject to Section 307) interest on such
Security on the respective Stated Maturities expressed in such Security (or, in
the case of redemption or purchase, on the Redemption Date or Purchase Date, as
the case may be) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
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SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any Security
(including any Security which is required to have been purchased pursuant
to an Offer to Purchase which has been made by the Company), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Trustee.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE 6
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations
or other facts stated therein or otherwise verify the contents
thereof).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 601;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 512 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section 601.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at
the request of any Holder, unless such Holder shall have offered to
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the Trustee security and indemnity satisfactory to it against any loss,
liability or expense including reasonable attorneys' fees that might be
incurred by it in compliance with such request or direction.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder as and
to the extent provided by the Trust Indenture Act; provided, however, that in
the case of any default of the character specified in Section 501(6), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or
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matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture, of
the Securities or the Common Stock issuable upon the conversion of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Conversion
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, any Conversion Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the
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acceptance or administration of this trust, including the costs and
expenses of enforcing the Indenture against the Company (including Section
607 hereof) and of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
The obligations of the Company under this Section 607 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall survive the
satisfaction and discharge of this Indenture. As security for the performance of
such obligations of the Company, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of or interest on
particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(9) or (10), the expenses (including
the reasonable charges and expenses of its counsel) of and the compensation for
such services are intended to constitute expenses of administration under any
applicable U.S. Federal or State bankruptcy, Canadian federal or provincial
insolvency or other similar law.
SECTION 608. Disqualification: Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such. Any
successor Trustee shall have a combined capital and surplus of at least
$50,000,000. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
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No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer, partial
conversion, partial purchase or partial redemption or pursuant to Section 306,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions to this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided
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such corporation shall otherwise be eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities described in the within-mentioned Indenture.
Wilmington Trust Company
As Trustee
By_____________________________________
As Authenticating Agent
By_____________________________________
Authorized Officer
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ARTICLE 7
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities and the corresponding
rights and duties of the Trustee, shall be provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to Section 312 of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
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SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with
the Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms.
The Company may not, in a single transaction or a series of related
transactions, (i) consolidate or merge with or into any other Person or permit
any other Person to consolidate or merge with or into the Company or (ii)
directly or indirectly, transfer, sell, lease or otherwise dispose of all or
substantially all of its assets, unless:
(1) in a transaction in which the Company does not survive or in which
the Company sells, leases or otherwise disposes of all or substantially all
of its assets, the successor entity to the Company (for purposes of this
Article Eight, a "Successor Company") shall be a corporation, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume by an indenture supplemental hereto executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of and interest on all the Securities and the performance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately before and after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing;
(3) the Company, or if applicable, the Successor Company has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer, lease or
acquisition and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture, complies with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any transfer, conveyance, sale, lease or other disposition
of all or substantially all of the properties and assets of the Company as an
entirety in accordance with Section 801, the Successor Company shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and
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thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE 9
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to comply with any requirements of the Commission in order to
maintain the qualification of this Indenture under the Trust Indenture Act;
or
(4) to make provision with respect to the conversion rights of Holders
of Securities pursuant to Section 1211; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided such action pursuant to this clause (4) shall not
adversely affect the interests of the Holders in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of interest on, any Security, or reduce the principal amount thereof or the
rate of interest thereon, or change the place of payment where, or the coin
or currency in which, any Security or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption or
any purchase, on or after the Redemption Date or
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Purchase Date, as the case may be), or except as permitted by Section 1211,
adversely affect the right to convert any Security as provided in Article
Twelve, or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders of
Securities, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1011, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) following the mailing of an Offer with respect to an Offer to
Purchase pursuant to Section 1401, modify the provisions of this Indenture
with respect to such Offer to Purchase in a manner adverse to such Holder.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. No such supplemental indenture shall directly or
indirectly modify the provisions of Article Thirteen in any manner which might
terminate or impair the rights of the Senior Debt pursuant to such subordination
provisions.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE 10
Covenants
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and interest on
the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the City of Wilmington, Delaware an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange, where
Securities may be surrendered for conversion and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside the City of Wilmington, Delaware) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the City of Wilmington, Delaware,
for such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
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Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of or interest on any Securities, deposit with
a Paying Agent a sum sufficient to pay the principal or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors in good faith shall determine that the preservation thereof
is no longer desirable in the conduct of
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the business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary of the Company to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Board of Directors in good faith,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Subsidiaries or upon
the income, profits or property of the Company or any of its Subsidiaries, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any of its
Subsidiaries; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings.
SECTION 1007. Registration and Listing.
(1) Prior to the time the Securities become convertible, the Company will
effect all registrations with, and obtain all approvals by, all governmental
authorities that may be necessary under any United States Federal or state law
(including the Securities Act, the Exchange Act and state securities and Blue
Sky laws) before the Common Shares issuable upon conversion of Securities may be
lawfully issued and delivered, and thereafter publicly traded (if permissible
under the Securities Act), and qualified or listed as contemplated by clause (2)
(it being understood that for purposes of this Section 1007, the Company shall
not be required to register the Securities or the Common Shares under the
Securities Act); and (2) prior to the time the Securities become convertible,
the Company will cause the Common Shares required to be issued and delivered
upon conversion of Securities, prior to such issuance or delivery, to be quoted
on Nasdaq or, if the Common Shares are not then listed on Nasdaq, cause to be
listed the Common Shares on the United States national securities exchange, if
any, on which Common Shares are listed or quoted at the time of such delivery.
Upon such registration, approval, quotation or listing, if any, as provided in
(1) and (2) above, the Company will deliver to the Trustee and the Conversion
Agent an Officers' Certificate notifying them of such compliance with Section
1007.
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SECTION 1008. Limitation on Restricted Payments.
The Company (i) may not, and may not permit any Subsidiary of the Company
to, directly or indirectly, declare or pay any dividend or make any distribution
(including any payment in connection with any merger or consolidation derived
from assets of the Company or any Subsidiary) in respect of its Capital Stock or
to the holders thereof, excluding (a) any dividends or distributions by the
Company payable solely in shares of its Common Stock (other than Redeemable
Stock) or in options, warrants or other rights to acquire its Common Stock
(other than Redeemable Stock), and (b) in the case of a Subsidiary, dividends or
distributions payable (1) to the Company or a Subsidiary and (2) to minority
shareholders of such Subsidiary, provided that at least a pro rata amount is
paid to the Company and/or a Subsidiary, as the case may be, and (ii) may not,
and may not permit any Subsidiary to, directly or indirectly, purchase, redeem,
or otherwise acquire or retire for value (a) any Capital Stock of the Company or
(b) any options, warrants or other rights to acquire shares of Capital Stock of
the Company or any securities convertible or exchangeable into shares of Capital
Stock of the Company (each of clauses (i) and (ii) being a "Restricted Payment")
if: (1) an Event of Default, or an event that with the passing of time or the
giving of notice, or both, would constitute an Event of Default, shall have
occurred and be continuing or would result from such Restricted Payment, or (2)
upon giving effect to such Restricted Payment, the aggregate of all Restricted
Payments from the date of original issuance of the Securities exceeds the sum of
(a) 75% of cumulative Consolidated Net Income (or, in the case Consolidated Net
Income shall be negative, less 100% of such deficit) of the Company from the
date of original issuance of the Securities through the last day of the last
full fiscal quarter ending immediately preceding such Restricted Payment for
which quarterly or annual financial statements are available (taken as a single
accounting period); plus (b) 100% of the aggregate net cash proceeds received by
the Company after the date of original issuance of the Securities, from
contributions of capital or the issuance and sale (other than to a Subsidiary)
of Capital Stock (other than Redeemable Stock) of the Company, options, warrants
or other rights to acquire Capital Stock (other than Redeemable Stock) of the
Company and indebtedness of the Company that has been converted into or
exchanged for Capital Stock (other than Redeemable Stock and other than by or
from a Subsidiary) of the Company after the date of original issuance of the
Securities. Prior to the making of any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate setting forth the computations
by which the determinations required by clause (2) above were made and stating
that no Event of Default, or event that with the passing of time or the giving
of notice, or both, would constitute an Event of Default, has occurred and is
continuing or will result from such Restricted Payment.
Notwithstanding the foregoing, so long as no Event of Default, or event
that with the passing of time or the giving of notice, or both, would constitute
an Event of Default, shall have occurred and be continuing or would result
therefrom, (i) the Company and any Subsidiary of the Company may pay any
dividend on Capital Stock of any class within 60 days after the declaration
thereof if, on the date when the dividend was declared, the Company or such
Subsidiary could have paid such dividend in accordance with the foregoing
provisions; (ii) the Company may purchase, redeem, acquire or retire any shares
of Capital Stock of the Company solely in exchange for or out of the net
proceeds of the substantially concurrent sale (other than from or to a
Subsidiary or from or to an employee stock ownership plan financed by loans from
the Company or a Subsidiary of the Company) of shares of Capital Stock (other
than Redeemable Stock) of the Company. Any payment made pursuant to clause (i)
or (ii) of this paragraph shall be a Restricted Payment for purposes of
calculating aggregate Restricted Payments pursuant to the preceding paragraph.
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SECTION 1009. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.
The Company may not, and may not permit any Subsidiary to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary of the Company to
pay dividends (in cash or otherwise) or make any other distributions in respect
of its Capital Stock owned by the Company or any other Subsidiary of the
Company. Notwithstanding the foregoing, the Company may, and may permit any
Subsidiary to, suffer to exist any such encumbrance or restriction:
(1) pursuant to any agreement in effect on the date of original
issuance of the Securities;
(2) pursuant to an agreement relating to any indebtedness incurred by
a Person (other than a Subsidiary of the Company existing on the date of
original issuance of the Securities or any Subsidiary carrying on any of
the businesses of any such Subsidiary) prior to the date on which such
Person became a Subsidiary of the Company and outstanding on such date and
not incurred in anticipation of becoming a Subsidiary, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person so acquired;
(3) pursuant to an agreement effecting a renewal, extension, refunding
or refinancing of indebtedness incurred pursuant to an agreement referred
to in clause (a) above, provided, however, that the provisions contained in
such renewal, extension, refunding or refinancing agreement relating to
such encumbrance or restriction are no more restrictive, taken as a whole,
than the provisions contained in the agreement the subject thereof, as
determined in good faith by the Board of Directors and evidenced by a
resolution of the Board of Directors filed with the Trustee;
(4) with respect to a Subsidiary of the Company imposed pursuant to an
agreement which has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary,
provided that consummation of such transaction would not result in an Event
of Default or an event that, with the passing of time or the giving of
notice or both, would constitute an Event of Default, that such restriction
terminates if such transaction is closed or abandoned and that the closing
or abandonment of such transaction occurs within one year of the date such
agreement was entered into;
(5) if such encumbrance or restriction is the result of applicable
corporate law or regulation relating to the payment of dividends or
distributions.
SECTION 1010. Limitation on Distributions of Assets to Shareholders.
The Company may not, and may not permit any Subsidiary to, directly or
indirectly, distribute, as a dividend or otherwise, any Capital Stock of a
Subsidiary to shareholders of the Company, unless such Subsidiary shall have
fully and unconditionally guaranteed the payment of principal and interest on
the Securities.
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SECTION 1011. Statement By Officers as to Default; Compliance Certificates.
(a) The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, and within 60 days after the end of each fiscal quarter
(other than the fourth fiscal quarter), of the Company ending after the date
hereof an Officers' Certificate, stating whether or not to the best knowledge of
the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of Section 801 or Sections 1004
to 1009, inclusive, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible and in
any event within 10 days after the Company becomes aware or should reasonably
become aware of the occurrence of an Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default, and the action which the Company proposes to take with respect thereto.
(c) The Company shall deliver to the Trustee within 90 days after the end
of each fiscal year a written statement by the Company's independent auditors or
public accountants stating (A) that their audit examination has included a
review of the terms of this Indenture and the Securities as they relate to
accounting matters, and (B) whether, in connection with their audit examination,
any event which, with notice or the lapse of time or both, would constitute an
Event of Default has come to their attention and, if such a default has come to
their attention, specifying the nature and period of the existence thereof.
SECTION 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Section 801 and Sections 1004 to 1009 inclusive, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 1013. Indemnification of Judgment Currency.
The Company shall indemnify the Trustee and any Holder against any loss
incurred by the Trustee or such Holder, as the case may be, as a result of any
judgment or order being given or made for any amount due under this Indenture or
such Security and being expressed and paid in a currency (the "Judgment
Currency") other than Dollars, and as a result of any variation between (i) the
rate of exchange at which the Dollar amount is converted into the Judgment
Currency for the purpose of such judgment or order and (ii) the spot rate of
exchange in The City of New York at which the Trustee or such Holder, as the
case may be, on the date of payment of such judgment or order is able to
purchase Dollars with the amount of the Judgment Currency actually received by
the Trustee or such Holder. The foregoing indemnity shall constitute a separate
and independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "spot
rate of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, United States dollars as
quoted by The Bank of Nova Scotia at its central foreign exchange desk in its
head office in Toronto at 12:00 noon (Toronto time).
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SECTION 1014. Available Information.
Whether or not the Company is required to be subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto, the Company shall
file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to such Section 13(a) or 15(d) or any successor provision thereto if
the Company were so required, such documents to be filed with the Commission on
or prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required so to file such documents if the Company were
so required. The Company shall also in any event (a) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, and
(ii) furnish to the Trustee, copies of the annual reports, quarterly reports and
other documents which the Company files with the Commission pursuant to such
Section 13(a) or 15(d) or any successor provision thereto or would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) or
any successor provisions thereto if the Company were required to be subject to
such Sections and (b) if filing such documents by the Company with the
Commission is not permitted under the Exchange Act, promptly upon written
request supply copies of such documents to any prospective Holder.
SECTION 1015. Acquisition of Securities.
The Company shall not, and shall cause its Affiliates not to, resell or
otherwise dispose of any Securities acquired by them, in the open market or
otherwise, and shall, and shall cause its Affiliates to, surrender all such
Securities acquired to the Trustee for cancellation.
ARTICLE 11
Redemption of Securities
SECTION 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company, as a whole
or in part, upon the occurrence of a Redemption Change of Control in amounts of
$1.00 or any integral multiples of $1.00 at the Redemption Price specified in
the form of Security hereinbefore set forth together with accrued interest to
the Redemption Date. The election of the Company to redeem any Securities
pursuant to Section 1101 shall be evidenced by a Board Resolution.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company, as permitted by
any provision of this Indenture, shall be made in accordance with such provision
and this Article.
SECTION 1103. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Section 1101, it
shall notify the Trustee of the Redemption Date and the principal amount of
Securities to be redeemed. The Company shall give each notice to the Trustee
provided for in this Section 1103 at least five days prior to the date on which
notice is to be given (or such shorter period as the Trustee may permit), as set
forth in section 1105. Any
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such notice may be canceled at any time prior to notice of such redemption being
mailed to any Holder and shall thereby be void and of no effect. In case of any
redemption at the election of the Company of less than all the Securities, the
notification to the Trustee shall specify the principal amount of Securities to
be redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1.00 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1.00.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall set forth:
(1) the Redemption Date,
(2) the Redemption Price,
(3) a brief statement setting forth the Company's right to effect such
redemption and the Company's basis therefor,
(4) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(6) the Conversion Price, the date on which the right to convert the
Securities to be redeemed will terminate and the place or places where such
Securities may be surrendered for conversion, and
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(7) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
On or prior to 9:00 a.m. New York City time on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date
other than any Securities called for redemption on that date which have been
converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with a Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 307) be paid to the Company on Company Request or, if
then held by the Company, shall be discharged from such trust.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate provided by the Security and such Security shall
remain convertible into Common Stock until the principal of such Security (or
portion thereof, as the case may be) shall have been paid or duly provided for.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in
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aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE 12
Conversion of Securities
SECTION 1201. Conversion Privilege and Conversion Price.
Subject to and upon compliance with the provisions of this Article, at the
option of the Holder thereof, any Security may be converted into fully paid and
nonassessable Common Shares (calculated as to each conversion to the nearest
1/100th of a share) at the Conversion Price, determined as hereinafter provided,
in effect at the time of conversion. Such conversion right may be exercised at
any time, subject, in the case of the conversion of any Global Security, to any
applicable book-entry procedures of the U.S. Depositary therefor. In case a
Security or portion thereof is called for redemption or is delivered for
purchase, such conversion right in respect of the Security or portion so called
or delivered shall expire at the close of business on the Redemption Date or the
Purchase Date, as the case may be, unless the Company defaults in making the
payment due upon redemption or purchase, as the case may be.
The price at which Common Shares shall be delivered upon conversion (herein
called the "Conversion Price") shall be initially $30.00 per Common Share. The
Conversion Price shall be adjusted in certain instances as provided in this
Article Twelve.
SECTION 1202. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any Security
to be converted shall (A) surrender such Security, duly endorsed or assigned to
the Company or in blank, at any office or agency of the Company maintained for
that purpose pursuant to Section 1002, and (B) deliver to such office or agency
a duly signed and completed conversion notice substantially in the form set
forth in Annex A-1, as appropriate, stating that the Holder elects to convert
such Security or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. Each Security surrendered for
conversion (in whole or in part) during the period from the close of business on
any Regular Record Date to the opening of business on the next succeeding
Interest Payment Date (except Securities called for redemption on a Redemption
Date or to be purchased on a Purchase Date during, in each case, such period)
shall be accompanied by payment in same day funds or other funds acceptable to
the Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of such Security (or part thereof, as the case may
be) being surrendered for conversion. The interest so payable on such Interest
Payment Date in respect of such Security (or portion thereof, as the case may
be) surrendered for conversion shall be paid to the Holder of such Security as
of such Regular Record Date. Interest payable in respect of any Security
surrendered for conversion on an Interest Payment Date shall be paid to the
Holder of such Security as of the next preceding Regular Record Date,
notwithstanding the exercise of the right of conversion. Except as provided in
this paragraph and subject to the last paragraph of Section 307, no cash payment
or adjustment shall be made upon any conversion on account of, if the date of
conversion is not an Interest Payment Date, any interest accrued from the
Interest Payment Date next preceding the conversion date, in respect of any
Security (or part thereof, as the case may be) surrendered for conversion, or on
account of any dividends on the Common Shares issued upon conversion. The
Company's delivery to the Holder of
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the number of Common Shares (and cash in lieu of fractions thereof, as provided
in this Indenture) into which a Security is convertible will be deemed to
satisfy the Company's obligation to pay the principal amount of the Security.
Securities shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Securities for conversion (the
"Conversion Date") in accordance with the foregoing provisions, and at such time
the rights of the holders of such Securities as holders shall cease, and the
Person or Persons entitled to receive the Common Shares issuable upon conversion
shall be treated for all purposes as the record holder or holders of such Common
Shares at such time. As promptly as practicable on or after the Conversion Date,
the Company shall issue and deliver to the Trustee, for delivery to the Holder,
a certificate or certificates for the number of full shares of Common Shares
issuable upon conversion, together with payment in lieu of any fraction of a
share, as provided in Section 1203.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in an aggregate principal amount equal to
the unconverted portion of the principal amount of such Security. A Security may
be converted in part, but only if the principal amount of such Security to be
converted is any integral multiple of $1.00.
SECTION 1203. Fractions of Shares.
No fractional Common Share shall be issued upon conversion of any
Securities. If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof) so surrendered. Instead
of any fractional Common Share which would otherwise be issuable upon conversion
of any Securities (or specified portions thereof), the Company shall calculate
and pay a cash adjustment in respect of such fraction (calculated to the nearest
1/100th of a share) in an amount equal to the same fraction of the current
market price per Common Share (calculated in accordance with Section 1204(5)
below) at the close of business on the day of conversion.
SECTION 1204. Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustments from time to time as
follows:
(1) In case the Company shall pay or make a dividend or other distribution
on any class of capital stock of the Company payable in Common Stock, the
Conversion Price in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such Conversion
Price by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (1), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.
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(2) In case outstanding shares of any class of Common Stock shall be
subdivided into a greater number of shares of such class of Common Stock, and,
conversely, in case outstanding shares of any class of Common Stock shall each
be combined into a smaller number of shares of such class of Common Stock, the
Conversion Price in effect at the opening of business on the day following the
day upon which such subdivision or combination becomes effective shall be
adjusted by the Company so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price adjustment contemplated by this
subparagraph (2) by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding immediately prior to such subdivision or
combination and the denominator shall be the number of shares of Common Stock
outstanding immediately after giving effect to such subdivision or combination,
such adjustment to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(3) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness, shares of any class
of capital stock, or other property (including securities, but excluding (i) any
rights, options or warrants referred to in Section 1212, (ii) any dividend or
distribution paid exclusively in cash, (iii) any dividend or distribution
referred to in paragraph (1) of this Section and (iv) any merger or
consolidation to which Section 1211 applies), the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on the
date fixed for the determination of stockholders entitled to receive such
distribution by a fraction of which (i) the numerator shall be the current
market price per share (determined as provided in paragraph (5) of this Section)
of the Common Stock on the third Trading Day prior to the date fixed for such
determination (the "Reference Date") less the then fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) on the Reference Date of the portion of the
assets, shares or evidences of indebtedness so distributed applicable to one
share of Common Stock and the denominator shall be the current market price per
share of Common Stock on the Reference Date, such adjustment to become effective
immediately prior to the opening of business on the day following the Reference
Date.
(4) The reclassification of any class of Common Stock into securities
including other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 1211 applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and "the date fixed for such determination" within
the meaning of paragraph (3) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares of such class of Common
Stock outstanding immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and the effective
date of such reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such combination becomes
effective", as the case may be, and "the day upon which such subdivision or
combination becomes effective" within the meaning of paragraph (3) of this
Section).
(5) For the purpose of any computation under paragraph (3) of this Section
1204, the current market price per share of a class of Common Stock on any date
shall be calculated by the Company and be deemed to be the average of the daily
Closing Prices Per Share of such class for the five consecutive Trading Days
selected by the Company commencing not more than 10 Trading Days before, and
ending not later than, the earlier of the day in question and the day before the
"ex" date with respect to the issuance or distribution
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requiring such computation. For purposes of this paragraph, the term "'ex'
date", when used with respect to any issuance or distribution, means the first
date on which such class of Common Stock trades regular way in the applicable
securities market or on the applicable securities exchange without the right to
receive such issuance or distribution.
(6) No adjustment in the Conversion Price shall be required unless such
adjustment (plus any adjustments not previously made by reason of this paragraph
(9)) would require an increase or decrease of at least one percent in such
price; provided, however, that any adjustments which by reason of this paragraph
(6) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this Article shall be made
to the nearest cent or to the nearest one- hundredth of a share, as the case may
be.
(7) The Company may make such reductions in the Conversion Price, for the
remaining term of the Securities or any shorter term, in addition to those
required by paragraphs (1), (2) and (3) of this Section 1204, as it considers to
be advisable in order to avoid or diminish any income tax to any holders of
Common Shares resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes.
SECTION 1205. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Price in
accordance with Section 1204 and shall prepare a certificate signed by the
Treasurer of the Company setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall promptly be filed with the Trustee and with each
Conversion Agent; and
(2) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be required,
and as soon as practicable after it is required, such notice shall be
provided by the Company to all holders in accordance with Section 106.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during normal business
hours.
SECTION 1206. Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other distribution)
on any class of its Common Stock payable otherwise than exclusively in
cash; or
(b) the Company shall authorize the granting to all holders of any
class of its Common Stock of rights, options or warrants to subscribe for
or purchase any shares of Capital Stock of any class or of any other
rights; or
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(c) of any reclassification of any class of Common Stock of the
Company (other than a subdivision or combination of its outstanding shares
of Common Stock), or of any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be provided to all holders in accordance with Section 106, at least 20
days (or 10 days in any case specified in clause (a) or (b) above) prior to the
applicable record, expiration or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, (y) the date on which the right to make tenders under such tender
offer expires or (z) the date on which such reclassification, consolidation,
merger, share exchange, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, share exchange,
conveyance, transfer, sale, lease, dissolution, liquidation or winding up. If at
the time the Trustee shall not be the conversion agent, a copy of such notice
and any notice referred to in the following paragraph shall also forthwith be
filed by the Company with the Trustee.
SECTION 1207. Company to Reserve Common Shares.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Shares, for the
purpose of effecting the conversion of Securities, the full number of Common
Shares then issuable upon the conversion of all Outstanding Securities.
SECTION 1208. Taxes on Conversions.
The Company will pay any and all taxes and duties that may be payable in
respect of the issue or delivery of shares of Common Shares on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax or duty which may be payable in respect of any transfer involved in the
issue and delivery of shares of Common Shares in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax or duty, or has established to
the satisfaction of the Company that such tax or duty has been paid.
SECTION 1209. Covenant as to Common Shares.
The Company agrees that all Common Shares which may be delivered upon
conversion of Securities, upon such delivery, will have been duly authorized and
validly issued and will be fully paid and nonassessable and free of any liens,
charges or adverse claims.
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SECTION 1210. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the Trustee
or its agent to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 308.
SECTION 1211. Provision in Case of Consolidation, Merger or Sale of Assets.
In case of any consolidation of the Company with, or merger of the Company
into, any other Person, any merger of another Person into the Company (other
than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding Common Shares of the Company) or any
sale or transfer of all or substantially all of the assets of the Company, the
Person formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security then
Outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 1201, to convert such Security only
into the kind and amount of securities, cash and other property receivable upon
such consolidation, merger, sale or transfer by a holder of the number of shares
of Common Shares of the Company into which such Security might have been
converted immediately prior to such consolidation, merger, sale or transfer, and
assuming such holder of Common Shares of the Company (i) is not a Person with
which the Company consolidated or into which the Company merged or which merged
into the Company or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer (provided that if the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer is
not the same for each Common Share of the Company held immediately prior to such
consolidation, merger, sale or transfer by Persons other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("Non-electing Share"), then for the purpose of
this Section 1211 the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by the holders of
each Non-electing Share shall be deemed to be the kind and amount so receivable
per share by a plurality of the Non-electing Shares). Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. The above
provisions of this Section 1211 shall similarly apply to successive
consolidations, mergers, sales or transfers. Notice of the execution of such a
supplemental indenture shall be given by the Company to the Holder of each
Security as provided in Section 106 promptly upon such execution.
SECTION 1212. Issuance of Rights, Options or Warrants.
The Company shall not issue any rights, options or warrants to holders of
any class of Common Stock entitling them to subscribe for or purchase additional
shares of any class of Common Stock unless the Company shall contemporaneously
issue to Holders of the Securities such number of such rights, options or
warrants as is equal to (a) the number of rights, options or warrants, per share
of Common Stock, issued to the holders thereof, multiplied by (b) the number of
Common Shares into which the Securities held by such Holder are then
convertible. The record date for the determination of Holders of Securities
entitled to such issuance of rights, options or warrants shall be the record
date for the determination of holders of Common Stock entitled to the issuance
of such rights, options or warrants.
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SECTION 1213. Responsibility of Trustee.
Neither the Trustee nor any authenticating agent nor any Conversion Agent
shall at any time be under any duty or responsibility to any Holder of
Securities to determine whether any facts exist which may require any adjustment
of the Conversion Price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any authenticating agent nor any Conversion Agent shall be
accountable with respect to the validity or value (or the kind or amount) of any
Common Shares, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Securities; and neither the Trustee nor
any authenticating agent nor any Conversion Agent makes any representation with
respect thereto. Neither the Trustee nor any authenticating agent nor any
Conversion Agent shall be responsible for any failure of the Company to issue,
transfer or deliver any Common Shares or stock certificates or other securities
or property or cash upon the surrender of any Securities for the purpose of
conversion or to comply with any of the covenants of the Company contained in
this Article.
ARTICLE 13
Subordination of Securities
SECTION 1301. Securities Subordinated to Senior Indebtedness.
All Securities issued under this Indenture shall be issued subject to the
following provisions and each Holder of any Security whether upon original issue
or upon transfer or assignment thereof accepts and agrees to be bound by such
provisions.
All Securities issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full in cash of all Senior Indebtedness and termination of all
commitments under the Exit Facility. "Senior Indebtedness" means (i) the
principal, premium, if any, and interest (regardless whether such interest is an
allowable claim after the commencement of any dissolution or winding up or total
or partial liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings) in
respect of indebtedness of the Company, whether outstanding on the date of the
Indenture or thereafter incurred, for money borrowed or pursuant to any
obligation of the Company for the reimbursement on any letter of credit, bankers
acceptance, security purchase facility or similar credit transaction, in each
case pursuant to (A) a credit facility with or agented by, a Bank, or (B)
pursuant to the Credit Agreement or the Exit Facility, (ii) any amendments,
renewals, extensions, refinancings, replacements or refundings of any
obligations of the type referred to in clause (i) above (regardless of whether
such amendment, renewal, extension, refinancing, replacement or refunding is
pursuant to a credit facility with or agented by a Bank), (iii) all obligations
of the type referred to in clauses (i) and (ii) above of any Affiliate of the
Company for the payment of which the Company is responsible or liable as
obligor, guarantor or otherwise, and (iv) all obligations of the type referred
to in clauses (i) through (iii) above of any Affiliate of the Company secured by
any lien on any property or asset of the Company (whether or not such obligation
is assumed by the Company), except for any such indebtedness or other obligation
that is by its terms subordinated to or pari passu with the Securities.
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SECTION 1302. No Payments in Certain Circumstances;
Payment Over of Proceeds Upon Dissolution, Etc.
No payment on account of principal of, premium, if any, or interest on, or
redemption or purchase (including without limitation, a purchase pursuant to
Article 14 of this Indenture) of, the Securities shall be made if, at the time
of such payment or immediately after giving effect thereto: (i) there shall
exist a default in the payment of principal of, premium, if any, sinking funds
or interest (including a default under any purchase or redemption obligations or
a default in the payment of interest after the commencement of any dissolution
or winding up or total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceeding at the rate specified in the applicable Senior Indebtedness,
whether or not such interest is an allowable claim in such proceeding) with
respect to any Senior Indebtedness, or (ii) there shall have occurred an event
of default (other than a default in the payment of principal, premium, if any,
sinking funds or interest) with respect to any Senior Indebtedness, as defined
therein or in the instrument under which the same is outstanding, permitting the
holders thereof to accelerate the maturity thereof and such event of default
shall not have been cured or waived or shall not have ceased to exist.
Notwithstanding the foregoing, the Company may make, and the Trustee may receive
and shall apply, any payment in respect of the Securities (for principal,
premium, if any, or interest or purchase) if such payment was made prior to the
occurrence of any of the contingencies specified in clauses (i) and (ii) above.
Upon (i) any acceleration of the principal amount due on the Securities or
(ii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, premium, if any, sinking
fund and interest due or to become due upon all Senior Indebtedness shall first
be paid in full (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Indebtedness, whether
or not such interest is an allowable claim in such proceeding), or payment
thereof provided for in cash in accordance with its terms, before any payment is
made on account of the principal of, or interest on, or purchase of, the
indebtedness evidenced by the Securities, and upon any such dissolution or
winding up or liquidation or reorganization any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the holders of the Securities or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid by
the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the holders of
the Securities or by the Trustee under this Indenture if received by them or it,
as the case may be, directly to the holders of Senior Indebtedness (in
accordance with their relative priority and otherwise pro rata to each such
holder on the basis of the respective amounts of Senior Indebtedness held by
such holder) or their representatives, to the extent necessary to pay all Senior
Indebtedness in full (including interest after the commencement of any
dissolution or winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, at the rate specified in the applicable
Senior Indebtedness, whether or not such interest is an allowable claim in such
proceeding), in money or money's worth, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness, before any
payment or distribution is made to the holders of the Securities or to the
Trustee under this Indenture.
If any default or event described in the first paragraph of this Section
1302 shall have occurred, any payment or distribution of assets of the Company
of any kind or character, whether in cash,
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<PAGE> 75
property or securities, received by the Trustee or the holders of the Securities
before all Senior Indebtedness is paid in full (including interest after the
commencement of any such proceeding at the rate specified in the applicable
Senior Indebtedness, whether or not such interest is an allowable claim in such
proceeding) or provision made for such payment, in accordance with its terms
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Indebtedness have been
issued, as their respective interests may appear, for application to the payment
of all Senior Indebtedness remaining unpaid to the extent necessary to pay all
such Senior Indebtedness in full in accordance with its terms (including
interest after the commencement of any dissolution or winding up or total or
partial liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings, at
the rate specified in the applicable Senior Indebtedness, whether or not such
interest is an allowable claim in such proceeding), after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, including the
payment of any interest in respect of any interest payment date occurring after
the commencement of any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceeding, the holders of
the Securities (together with the holders of any other indebtedness of the
Company which is subordinated in right of payment to the payment in full of all
Senior Indebtedness, which is not subordinated in right of payment to the
Securities and which by its terms grants such right of subrogation to the
holders thereof) shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets of the Company made
on the Senior Indebtedness until the principal of, premium, if any, and interest
on, or purchase of, the Securities shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payment over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by the holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of Securities, be deemed to be a payment by the
Company to the holders of or on account of Senior Indebtedness, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the holders of the Securities, on
the one hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 1303. Notice to Trustee of Specified Events;
Reliance on Certificate of Liquidating Agent.
The Company shall give prompt written notice to the Trustee of any
insolvency or bankruptcy proceeding in respect of the Company, of any
proceedings for voluntary liquidation, dissolution or other winding up of the
Company (whether or not involving insolvency or bankruptcy), of the declaration
of any Security as due and payable before its expressed maturity, and of any
event which pursuant to Section 1302 would prevent payment by the Company on
account of the principal, or interest on, or purchase of, the Securities. The
Trustee, subject to the provisions of Section 601, shall be entitled to assume
that no such event has occurred unless the Company, or a holder of Senior
Indebtedness, or any trustee therefor, has given such notice.
Upon any distribution of assets of the Company or payment by or on behalf
of the Company referred to in this Article, the Trustee and the holders of the
Securities shall be entitled to rely upon any order
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<PAGE> 76
or decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 1302 are pending, and the Trustee, subject to the
provisions of Section 601, and the holders of the Securities shall be entitled
to rely upon a certificate of the liquidating trustee or agent or other Person
making any distribution to the Trustee or to the holders of the Securities for
the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
In the event that the Trustee determines, in good faith, that further evidence
is required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such Person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing itself to be a holder of Senior Indebtedness (or
a trustee on behalf of such holder) to establish that such notice has been given
by a holder of Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Thirteen, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Thirteen and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 1304. Trustee to Effectuate Subordination.
The Holder of each Security by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination as provided in this
Article and appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 1305. Trustee Not Charged with Knowledge of Prohibition.
Notwithstanding the provisions of this Article or any other provision of
this Indenture, but subject to the provisions of Section 601 as between the
holders of Securities and the Trustee, neither the Trustee nor any Paying Agent
shall be charged with knowledge of any facts which would prohibit the making of
any payment of moneys to or by the Trustee or any such Paying Agent, unless and
until the Trustee or such Paying Agent shall have received written notice
thereof at its Corporate Trust Office from the Company or any holder of Senior
Indebtedness or the trustee or representative of any holder of such Senior
Indebtedness on his behalf; and, prior to the receipt of any such written
notice, the Trustee and any such Paying Agent shall be entitled to assume that
no such facts exist. If the Trustee or Paying Agent, as the case may be, shall
not have received, at least three Business Days prior to the date upon which by
the terms hereof any such moneys may become payable for any purpose (including,
without limitation, the payment of the principal of, premium, if any, or the
interest on any Security) with respect to such moneys, the notice provided for
in this
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Section, then, anything herein contained to the contrary notwithstanding, the
Trustee and such Paying Agent, as the case may be, shall have full power and
authority to receive such moneys and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary which
may be received by it within three Business Days prior to such date.
SECTION 1306. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to holders of Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations
with respect to holders of Senior Indebtedness shall be read into this Indenture
against the Trustee.
SECTION 1307. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1308. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that
Sections 1305, 1306 and 1307 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1309. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and delivery of
junior securities upon conversion of Securities in accordance with Article
Twelve shall not be deemed to constitute a payment or distribution on account of
the principal of or premium or interest on Securities or on account of the
purchase or other acquisition of Securities, and (2) the payment, issuance or
delivery of cash, property or securities (other than junior securities) upon
conversion of a Security shall be deemed to constitute payment on account of the
principal of such Security. For the purposes of this Section, the term "junior
securities" means Common Shares and any other cash, property or securities into
which the Securities are convertible pursuant to Article Twelve. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or
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<PAGE> 78
shall impair, as among the Company, its creditors other than holders of Senior
Indebtedness and the holders of the Securities, the right, which is absolute and
unconditional, of the Holder of any Security to convert such Security in
accordance with Article Twelve.
ARTICLE 14
Change of Control
SECTION 1401. Change of Control.
(a) Within 30 days of the occurrence of a Change of Control, the Company
will be required to mail an Offer with respect to an Offer to Purchase all
Outstanding Securities at the Purchase Price thereof plus accrued interest to
the Purchase Date (provided, however, that installments of interest whose Stated
Maturity is on or prior to the Purchase Date shall be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307). Each Holder shall be entitled to tender all or
any portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be tendered in an integral multiple of $1.00 principal amount.
(b) The Company and the Trustee shall perform their respective obligations
specified in the Offer for an Offer to Purchase. Subject to Article 13 and
Section 1403 hereof, prior to the Purchase Date, the Company shall (i) accept
for payment all Securities or portions thereof tendered pursuant to the Offer,
(ii) deposit with the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) money
sufficient to pay the purchase price of all Securities or portions thereof so
accepted and (iii) deliver or cause to be delivered to the Trustee all
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to Holders of Securities so accepted
payment in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security or Securities
equal in principal amount to any unpurchased portion of the Security surrendered
as requested by the Holder. Any Security not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Offer on or as soon as practicable
after the Purchase Date.
(c) Any Offer to Purchase shall be governed by and effected in accordance
with the Offer for such Offer to Purchase.
SECTION 1402. Certain Definitions.
For purposes of this Article 14,
(1) "beneficial owner" shall be determined in accordance with Rule 13d-3,
as in effect on the date of the original execution of this Indenture,
promulgated by the Commission pursuant to the Exchange Act;
(2) a "Change of Control" shall be deemed to have occurred (unless the
Company is discharged from its obligations with respect to the Securities in
accordance with Article 4) at the time, after
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<PAGE> 79
the original issuance of the Securities, of: (i) an event or series of events by
which any Person or other entity or Group of Persons (other than a Permitted
Holder) (such Person or group of Persons, an "Acquiror") shall, as a result of
(A) a tender or exchange offer, open market purchases or privately negotiated
purchases, or (B) a merger, consolidation or otherwise, have become the
beneficial owner of more than 50% of the aggregate voting power of all classes
of Voting Stock of the Company; or (ii) the Company is consolidated with or
merged into another corporation with the effect that immediately after such
transaction the shareholders of the Company immediately prior to such
transaction beneficially own less than a majority of the voting power of all
classes of Voting Stock of the Person surviving such transaction, and the
Acquiror beneficially owns more than a majority of the voting power of all
classes of Voting Stock of the Person surviving such transaction;
(3) "Offer" has the meaning specified in the definition of Offer to
Purchase.
(4) "Offer Expiration Date" has the meaning specified in the definition of
Offer to Purchase.
(5) "Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at its address
appearing in the Securities Register on the date of the Offer. Unless otherwise
required by applicable law, the Offer shall specify an expiration date (the
"Offer Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of Securities within five Business Days after the Offer Expiration
Date; provided that, if the Offer Expiration Date occurs during a Deferral
Period, the Purchase Date shall be the fifth Business Day after the termination
of the Deferral Period. The Company shall notify the Trustee at least 15
Business Days (or such shorter period as is acceptable to the Trustee) prior to
the mailing of the Offer of the Company's obligation to make an Offer to
Purchase, and the Offer shall be mailed by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. The Offer
shall contain information concerning the business of the Company and its
Restricted Subsidiaries which the Company in good faith believes will enable
such Holders to make an informed decision with respect to the Offer to Purchase.
The Offer shall contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Offer to Purchase. The Offer shall
also state:
(A) the Offer Expiration Date, the Purchase Date and, if applicable,
the Deferral Period;
(B) the Purchase Price;
(C) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1.00 principal
amount;
(D) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(E) that interest (including Deferral Period Interest) on any Security
not tendered or tendered but not purchased by the Company pursuant to the
Offer to Purchase will continue to accrue;
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<PAGE> 80
(F) that, subject to any Deferral Period, on the Purchase Date the
Purchase Price will become due and payable upon each Security being
accepted for payment pursuant to the Offer to Purchase and that interest
thereon shall cease to accrue on and after the Purchase Date;
(G) the Conversion Price then in effect, the date on which the right
to convert the principal amount of the Securities to be purchased will
terminate and the place or places where such Securities may be surrendered
for conversion;
(H) that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the place
or places specified in the Offer prior to the close of business on the
Offer Expiration Date (such Security being, if the Company or the Trustee
so requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing);
(I) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or the Paying Agent) receives, not
later than the close of business on the Offer Expiration Date a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder tendered, the
certificate number of the Security the Holder tendered and a statement that
such Holder is withdrawing all or a portion of its tender;
(J) that, subject to the Deferral Period, if less than all of the
Outstanding Securities are duly tendered and not withdrawn pursuant to the
Offer to Purchase, the Company shall purchase all such Securities; and
(K) that in the case of any Holder whose Security is purchased only in
part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
(6) "Person" or "Group of Persons" shall include any syndicate or group
which would be deemed to be a "person" under Section 13(d)(3) of the Exchange
Act, as in effect on the date of the original execution of this Indenture.
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(7) "Purchase Price" means the following prices (expressed as percentages
of the principal amount) if the Purchase Date is during the 12-month period
beginning April 15 of each of the years indicated below:
<TABLE>
<CAPTION>
Purchase
Year Price
---- -----
<S> <C>
2000 64.45915%
2001 68.32670%
2002 72.42630%
2003 76.77187%
2004 81.37819%
2005 86.26088%
2006 88.84870%
2007 91.51417%
2008 94.25959%
2009 97.08738%
</TABLE>
and thereafter at a price equal to 100% of the principal amount.
SECTION 1403. Deferral Period.
Notwithstanding the provisions of Sections 1401 and 1402 hereof, during a
Deferral Period, the Company shall not be required to accept for payment or
purchase any Securities tendered pursuant to an Offer. A Holder whose Securities
have been tendered pursuant to an Offer may not withdraw its Securities during
the Deferral Period.
-----------------------------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE> 82
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
PHILIP SERVICES CORPORATION
By: /s/ P.C. Widman
---------------------------------------
Name: Phillip Widman
Title: Executive Vice President and
Chief Financial Officer
WILMINGTON TRUST COMPANY
By: /s/ James D. Nesci
---------------------------------------
Name: James D. Nesci
Title: Authorized Signer
<PAGE> 83
ANNEX A-1
FORM OF CONVERSION NOTICE
Wilmington Trust Company
as Conversion Agent
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Re: Philip Services Corporation
3% Convertible Subordinated Notes
Due April 15, 2020 (the "Securities")
Reference is hereby made to the Indenture, dated as of April 7, 2000 (the
"Indenture"), between Philip Services Corporation as Issuer, and Wilmington
Trust Company, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to the Securities specified below, which are registered
in the name of the undersigned (the "Holder"). The Holder hereby irrevocably
exercises its right to convert such Securities, or the portion thereof, if any,
specified below, into Common Shares and, as specified below, directs that such
Shares, together with any check in payment for a frac tional share and any
Security representing any unconverted principal amount, be issued and delivered
[in book-entry form through the facilities of the Depositary, for credit to the
ac count(s) of the Person(s)] [in certificated form to the Registered Owner(s)]
indicated below. The Holder understands that, subject to certain limited
exceptions specified in the Indenture, owners of beneficial interests in a
Global Security must hold any Security representing any unconverted principal
amount in book-entry form.
The Holder acknowledges and agrees that no Common Shares will be delivered
upon conversion of such Securities until any amount payable by the Holder on
account of interest is paid, any certificates evidencing specified Securities
not held in book-entry form are
A-1-1
<PAGE> 84
duly endorsed or assigned to the Company or in blank and surrendered and any
taxes or other charges or documents required in connection with a transfer on
conversion, and any other required items, are delivered to the Conversion Agent.
Conversion of the specified Securities is subject to the requirements
established by the Company and the Trustee pursuant to the Indenture, as well as
to the procedures of the U.S. Depository if such Securities are held or to be
held in book-entry form, all as in effect from time to time. The specified
Securities will be deemed to have been converted immediately prior to the close
of business on the first day on which this conversion notice and all other
required items have been delivered to the Conversion Agent as provided above
and, upon such conversion, shall cease to accrue interest or be Outstanding.
A-1-2
<PAGE> 85
Please provide the information requested below, as applicable.
(1) PLEASE SPECIFY THE SECURITIES HELD AND THE PORTION THEREOF
TO BE CONVERTED;
Principal amount held: U.S.$__________________________________________
CUSIP number(s):_______________________________________________________
Depositary account where held
(if applicable):______________________________________________
Principal amount being converted (if less than all):
U.S. $________________________________________________________
All Securities to be converted will be converted into Common Shares and
(together with any unconverted Securities) will be delivered as
specified in Item 2 below.
(2) Please specify the type, number and form of securities to be delivered
on conversion and the name(s) of the account holder(s) or registered
owner(s), by checking the appropriate boxes and providing the
information requested:
[ ] Book Entry
Number of Common Shares: ___________________________________
Depositary Account: ___________________________________
[ ] Certificates
Number of Common Shares: ___________________________________
Registered Owner: ___________________________________
[ ] Unconverted Book Entry
Principal Amount: U.S.$ __________________________________1
Depositary Account: ___________________________________
[ ] Unconverted Certificates
(only in certain instances
defined in the Indenture)
Principal Amount: U.S.$ __________________________________*
Registered Owner: ___________________________________
Please sign and date this notice in the space provided below.
___________________
[FN]
1 Aggregate principal amount of each certificate must equal U.S. $1.00 or any
integral multiple thereof.
</FN>
A-1-3
<PAGE> 86
DATE: ________________________________
Name of Holder
________________________________
Signature(s) of Holder
Title(s):
(If the Holder is a corporation,
partnership or fiduciary, the title
of the Person signing on behalf of
the Holder must be stated.)
Signature(s) must be guaranteed by an institution which is a member of the
following recognized signature guarantee programs: (i) the Securities Transfer
Agent Medallion Program, (ii) the New York Stock Exchange Medallion Program,
(iii) the Stock Exchange Medallion Program or (iv) another guarantee program
reasonably acceptable to the Conversion Agent, if Common Shares or unconverted
Securities are to be delivered other than to and in the name of the registered
owner.
________________________________
Signature Guarantee
A-1-4
<PAGE> 1
Registration No. 22-22443
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2)--------
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
PHILIP SERVICES CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 98-0131394
(State of incorporation) (I.R.S. employer identification no.)
100 King Street West
Hamilton, Ontario, Canada L8N 4T6
(Address of principal executive offices) (Zip Code)
3% Convertible Subordinated Notes due 4-15-2020
(Title of the indenture securities)
================================================================================
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ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee and
upon information furnished by the obligor, the obligor is not an affiliate
of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of Eligibility
and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to exercise
corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 24th day
of April, 2000.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Patricia A. Evans By: /s/ Donald G. MacKelcan
------------------------- ------------------------------
Assistant Secretary Name: Donald G. MacKelcan
Title: Vice President
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<PAGE> 3
EXHIBIT A
AMENDED CHARTER
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON MAY 9, 1987
<PAGE> 4
AMENDED CHARTER
OR
ACT OF INCORPORATION
OF
WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "WILMINGTON TRUST COMPANY" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
FIRST: - The name of this corporation is WILMINGTON TRUST COMPANY.
SECOND: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is WILMINGTON TRUST COMPANY whose address is
Rodney Square North, in said City. In addition to such principal office,
the said corporation maintains and operates branch offices in the City of
Newark, New Castle County, Delaware, the Town of Newport, New Castle
County, Delaware, at Claymont, New Castle County, Delaware, at Greenville,
New Castle County Delaware, and at Milford Cross Roads, New Castle County,
Delaware, and shall be empowered to open, maintain and operate branch
offices at Ninth and Shipley Streets, 418 Delaware Avenue, 2120 Market
Street, and 3605 Market Street, all in the City of Wilmington, New Castle
County, Delaware, and such other branch offices or places of business as
may be authorized from time to time by the agency or agencies of the
government of the State of Delaware empowered to confer such authority.
THIRD: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE> 5
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive deposits
of money, or securities for money, to buy gold and silver bullion and
foreign coins, to buy and sell bills of exchange, and generally to
use, exercise and enjoy all the powers, rights, privileges and
franchises incident to a corporation which are proper or necessary for
the transaction of the business of the Corporation hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property, real
or personal, against any claim or claims, adverse to his interest
therein, and to prepare and give certificates of title for any lands
or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort and
kind, from executors, administrators, guardians, public officers,
courts, receivers, assignees, trustees, and from all fiduciaries, and
from all other persons and individuals, and from all corporations
whether state, municipal, corporate or private, and to rent boxes,
safes, vaults and other receptacles for such property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation, association,
state or municipality, and may receive and manage any sinking fund
therefor on such terms as may be agreed upon between the two parties,
and in like manner may act as Treasurer of any corporation or
municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or other
instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
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(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or persons,
for the faithful performance of any trust, office, duty, contract or
agreement, either by itself or in conjunction with any other person,
or persons, corporation, or corporations, or in like manner become
surety upon any bond, recognizance, obligation, judgment, suit, order,
or decree to be entered in any court of record within the State of
Delaware or elsewhere, or which may now or hereafter be required by
any law, judge, officer or court in the State of Delaware or
elsewhere.
(9) To act by any and every method of appointment as trustee, trustee
in bankruptcy, receiver, assignee, assignee in bankruptcy, executor,
administrator, guardian, bailee, or in any other trust capacity in the
receiving, holding, managing, and disposing of any and all estates and
property, real, personal or mixed, and to be appointed as such
trustee, trustee in bankruptcy, receiver, assignee, assignee in
bankruptcy, executor, administrator, guardian or bailee by any
persons, corporations, court, officer, or authority, in the State of
Delaware or elsewhere; and whenever this Corporation is so appointed
by any person, corporation, court, officer or authority such trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity, it shall not be required to give bond with surety, but its
capital stock shall be taken and held as security for the performance
of the duties devolving upon it by such appointment.
(10) And for its care, management and trouble, and the exercise of any
of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for the
assumption of any responsibility the said Corporation may be entitled
to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages, debentures,
shares of capital stock, and other securities, obligations, contracts
and evidences of indebtedness, of any private, public or municipal
corporation within and without the State of Delaware, or of the
Government of the United States, or of any state, territory, colony,
or possession thereof, or of any foreign government or country; to
receive, collect, receipt for, and dispose of interest, dividends and
income upon and from any of the bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences
of indebtedness and other property held and owned by it, and to
exercise in respect of all such bonds, mortgages, debentures, notes,
shares of capital stock, securities, obligations, contracts, evidences
of indebtedness and other property, any and all the rights, powers and
privileges of individual
3
<PAGE> 7
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and from
time to time to vary or realize such investments; to issue bonds and
secure the same by pledges or deeds of trust or mortgages of or upon
the whole or any part of the property held or owned by the
Corporation, and to sell and pledge such bonds, as and when the Board
of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by law,
to lease, purchase, hold, sell, assign, transfer, pledge, mortgage and
convey real and personal property of any name and nature and any
estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that the
said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in any
manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary or
convenient in and about the conduct and management of such business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose of
property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every kind
with any person, firm, association or corporation, and, without limit
as to amount, to draw, make, accept, endorse, discount, execute and
issue promissory notes, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or transferable instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of, real
and personal property, of every class and description, in any State,
District, Territory or Colony of the United States, and in any foreign
country or place.
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<PAGE> 8
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except where
otherwise expressed in said paragraph) be nowise limited or restricted
by reference to or inference from the terms of any other clause of
this or any other paragraph in this charter, but that the objects,
purposes and powers specified in each of the clauses of this paragraph
shall be regarded as independent objects, purposes and powers.
FOURTH: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million (41,000,000)
shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value $1.00
per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article FOURTH, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of
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<PAGE> 9
the preference or relation, if any, of such dividends to the dividends
payable on any other class or classes, or series of the same or other
class of stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times
at which, and the terms and conditions on which, Preferred Stock of
such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section (b)
of this Article FOURTH), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article FOURTH), and subject further to any conditions which may be
fixed in accordance with the provisions of section (b) of this Article
FOURTH, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article FOURTH), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution or
sale of assets, dissolution or winding-
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up, of the Corporation, the holders of the Common Stock shall be
entitled to receive all of the remaining assets of the Corporation,
tangible and intangible, of whatever kind available for distribution
to stockholders ratably in proportion to the number of shares of
Common Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions of
such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article FOURTH, each holder
of Common Stock shall have one vote in respect of each share of Common
Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series
of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable for stock
of the Corporation of any class or series, or carrying any right to
purchase stock of any class or series, but any such unissued stock,
additional authorized issue of shares of any class or series of stock or
securities convertible into or exchangeable for stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant to
resolution of the Board of Directors to such persons, firms, corporations
or associations, whether such holders or others, and upon such terms as may
be deemed advisable by the Board of Directors in the exercise of its sole
discretion.
(e) The relative powers, preferences and rights of each series of Preferred
Stock in relation to the relative powers, preferences and rights of each
other series of Preferred Stock shall, in each case, be as fixed from time
to time by the Board of Directors in the resolution or resolutions adopted
pursuant to authority granted in section (b) of this Article FOURTH and the
consent, by class or series vote or otherwise, of the holders of such of
the series of Preferred Stock as are from time to time outstanding shall
not be required for the issuance by the Board of Directors of any other
series of Preferred Stock whether or not the powers, preferences and rights
of such other series shall be fixed by the Board of Directors as senior to,
or on a parity with, the powers, preferences and rights of such outstanding
series, or any of them; provided, however, that the Board of Directors may
provide in the resolution or resolutions as to any series of Preferred
Stock adopted pursuant to section (b) of this Article FOURTH that the
consent of the holders of a majority (or such greater proportion as shall
be therein fixed) of the outstanding shares of such series voting thereon
shall be required for the issuance of any or all other series of Preferred
Stock.
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(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time to
time by the affirmative vote of the holders of a majority of the stock of
the Corporation entitled to vote thereon.
FIFTH: - (a) The business and affairs of the Corporation shall be conducted
and managed by a Board of Directors. The number of directors constituting
the entire Board shall be not less than five nor more than twenty-five as
fixed from time to time by vote of a majority of the whole Board, provided,
however, that the number of directors shall not be reduced so as to shorten
the term of any director at the time in office, and provided further, that
the number of directors constituting the whole Board shall be twenty-four
until otherwise fixed by a majority of the whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the first
class shall be elected to hold office for a term expiring at the next
succeeding annual meeting, directors of the second class shall be elected
to hold office for a term expiring at the second succeeding annual meeting
and directors of the third class shall be elected to hold office for a term
expiring at the third succeeding annual meeting. Any vacancies in the Board
of Directors for any reason, and any newly created directorships resulting
from any increase in the directors, may be filled by the Board of
Directors, acting by a majority of the directors then in office, although
less than a quorum, and any directors so chosen shall hold office until the
next annual election of directors. At such election, the stockholders shall
elect a successor to such director to hold office until the next election
of the class for which such director shall have been chosen and until his
successor shall be elected and qualified. No decrease in the number of
directors shall shorten the term of any incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the By-Laws of the Corporation), any director or
the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered or
mailed, as prescribed, to the Secretary of the Corporation not later than
the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on behalf
of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such nominee
and (iii) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
SIXTH: - The Directors shall choose such officers, agents and servants as
may be provided in the By-Laws as they may from time to time find necessary
or proper.
SEVENTH: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized under
the Act entitled "An Act Providing a General Corporation Law", approved
March 10, 1899, as from time to time amended.
EIGHTH: - This Act shall be deemed and taken to be a private Act.
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NINTH: - This Corporation is to have perpetual existence.
TENTH: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
ELEVENTH: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
TWELFTH: - The Corporation may transact business in any part of the world.
THIRTEENTH: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however, that
any such additional By-Laws, alterations or repeal may be adopted only by
the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
FOURTEENTH: - Meetings of the Directors may be held outside of the State of
Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
FIFTEENTH: - (a) (1) In addition to any affirmative vote required by law,
and except as otherwise expressly provided in sections (b) and (c) of this
Article FIFTEENTH:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or not
itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of
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$1,000,000 or more, or
(C) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of related transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder or
any Affiliate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Stockholder, or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article FIFTEENTH as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article FIFTEENTH
shall mean any transaction which is referred to in any one or more of
clauses (A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article FIFTEENTH shall not
be applicable to any particular business combination and such business
combination shall require only such affirmative vote as is required by
law and any other provisions of the Charter or Act of Incorporation or
By-Laws if such business combination has been approved by a majority
of the whole Board.
(c) For the purposes of this Article FIFTEENTH:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any
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person (other than the Corporation or any Subsidiary) who or which as of
the record date for the determination of stockholders entitled to notice of
and to vote on such business combination, or immediately prior to the
consummation of any such transaction:
(A) is the beneficial owner, directly or indirectly, of more than 10%
of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly,
of not less than 10% of the then outstanding voting Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
and such assignment or succession shall have occurred in the course of
a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any other
person with which such first mentioned person or any of its Affiliates
or Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned through
application of paragraph (3) above but shall not include any other Voting
Shares which may be issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms
12
<PAGE> 16
in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on December 31, 1981.
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article FIFTEENTH on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an Affiliate
or Associate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters referred
to in paragraph (3) of section (c), or (4) whether the assets subject
to any business combination or the consideration received for the
issuance or transfer of securities by the Corporation, or any
Subsidiary has an aggregate fair market value of $1,000,000 or more.
(e) Nothing contained in this Article FIFTEENTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
SIXTEENTH: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles FIFTH, THIRTEENTH, FIFTEENTH or
SIXTEENTH of this Charter or Act of Incorporation.
SEVENTEENTH: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware General
Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
13
<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
AS EXISTING ON JANUARY 20, 2000
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each share of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
DIRECTORS
Section 1. The number and classification of the Board of Directors shall be
as set forth in the Charter of the Bank. No more than two Directors may also be
employees of the Company or any affiliate thereof.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971. The Chairman of the
Board of Directors shall not be qualified to continue to serve as a Director
upon the termination for any reason of his or her service in that office.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted
<PAGE> 19
by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Board of
Directors or the President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in charge
of such of the departments or divisions of the Company as it may deem advisable.
2
<PAGE> 20
ARTICLE III
COMMITTEES
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board of
Directors when it is not in session to transact all business for and in behalf
of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such
3
<PAGE> 21
implementary Resolutions shall be suspended during such a disaster period until
it shall be determined by any interim Executive Committee acting under this
section that it shall be to the advantage of the Company to resume the conduct
and management of its affairs and business under all of the other provisions of
these By-Laws.
Section 2. Audit Committee
(A) The Audit Committee shall be composed of five members who shall be
selected by the Board of Directors from its own members, none of whom shall be
an officer of the Company, and shall hold office at the pleasure of the Board.
(B) The Audit Committee shall have general supervision over the Audit
Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the majority
of its members shall deem it to be proper for the transaction of its business,
and a majority of its Committee shall constitute a quorum.
Section 3. Compensation Committee
(A) The Compensation Committee shall be composed of not more than five
(5) members who shall be selected by the Board of Directors from its own members
who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all matters
of policy concerning the Company brought to its attention by the management and
from time to time review the management of the Company, major organizational
matters, including salaries and employee benefits and specifically shall
administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time by
the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 4. Associate Directors
(A) Any person who has served as a director may be elected by the Board
of Directors as an associate director, to serve during the pleasure of the
Board.
4
<PAGE> 22
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 5. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any Committee
created under Article III of the By-Laws of this Company, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
ARTICLE IV
OFFICERS
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of Directors shall preside at all meetings of the Board of Directors at which
the Chairman of the Board shall not be present and shall have such further
authority and powers and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to the
office of the President conferred or imposed upon him by statute or assigned to
him by the Board of Directors. In the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated by
the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board
5
<PAGE> 23
of Directors and/or the President and such other powers and duties as may from
time to time be assigned to them by the Board of Directors, the Executive
Committee, the Chairman of the Board or the President and by the officer in
charge of the department or division to which they are assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets and
liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general supervision
over the internal operations of the Company, including accounting, and shall
render to the Board of Directors at appropriate times a report relating to the
general condition and internal operations of the Company.
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in charge
of the Audit Division of the Company with such title as the Board of Directors
shall prescribe, shall report to and be directly responsible only to the Board
of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or
6
<PAGE> 24
division to whom they are assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
STOCK AND STOCK CERTIFICATES
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificates of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of any dividend, or to any allotment or
rights, or to exercise any rights in respect of any change, conversion or
exchange of capital stock, or in connection with obtaining the consent of
stockholders for any purpose, which record date shall not be more than 60 nor
less than 10 days proceeding the date of any meeting of stockholders or the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent.
ARTICLE VI
SEAL
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust
Company" within the inner
7
<PAGE> 25
circle the words "Wilmington, Delaware."
ARTICLE VII
FISCAL YEAR
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
EXECUTION OF INSTRUMENTS OF THE COMPANY
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
ARTICLE IX
COMPENSATION OF DIRECTORS AND MEMBERS OF COMMITTEES
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
8
<PAGE> 26
ARTICLE X
INDEMNIFICATION
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director or officer in his capacity as a
Director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Director or officer to repay
all amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under this
Article X is not paid in full within ninety days after a written claim therefor
has been received by the Corporation the claimant may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant was not
entitled to the requested indemnification of payment of expenses under
applicable law.
(D) The rights conferred on any person by this Article X shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
9
<PAGE> 27
ARTICLE XI
AMENDMENTS TO THE BY-LAWS
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE> 28
EXHIBIT C
SECTION 321(B) CONSENT
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: April 24, 2000 By: /s/ Donald G. MacKelcan
------------------------------
Name: Donald G. MacKelcan
Title: Vice President
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved by
any state banking authorities. Refer to your appropriate state banking
authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------------- --------------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1999.
<TABLE>
ASSETS
Thousands of dollars
--------------------
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins................................ 213,700
Interest-bearing balances.......................................................... 0
Held-to-maturity securities................................................................. 30,232
Available-for-sale securities............................................................... 1,628,889
Federal funds sold and securities purchased under agreements to resell...................... 390,650
Loans and lease financing receivables:
Loans and leases, net of unearned income................. 4,374,777
LESS: Allowance for loan and lease losses............... 71,368
LESS: Allocated transfer risk reserve................... 0
Loans and leases, net of unearned income, allowance, and reserve................... 4,303,409
Assets held in trading accounts............................................................. 0
Premises and fixed assets (including capitalized leases).................................... 122,273
Other real estate owned..................................................................... 576
Investments in unconsolidated subsidiaries and associated companies......................... 1,511
Customers' liability to this bank on acceptances outstanding................................ 0
Intangible assets........................................................................... 5,100
Other assets................................................................................ 133,449
Total assets................................................................................ 6,829,789
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 30
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices......................................................................... 5,186,079
Noninterest-bearing.......................... 986,667
Interest-bearing............................. 4,199,412
Federal funds purchased and Securities sold under agreements to repurchase.................. 269,343
Demand notes issued to the U.S. Treasury.................................................... 95,000
Trading liabilities (from Schedule RC-D).................................................... 0
Other borrowed money:....................................................................... ///////
With original maturity of one year or less......................................... 670,000
With original maturity of more than one year....................................... 43,000
Bank's liability on acceptances executed and outstanding.................................... 0
Subordinated notes and debentures........................................................... 0
Other liabilities (from Schedule RC-G)...................................................... 151,436
Total liabilities........................................................................... 6,414,858
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................... 0
Common Stock................................................................................ 500
Surplus (exclude all surplus related to preferred stock).................................... 62,118
Undivided profits and capital reserves...................................................... 386,485
Net unrealized holding gains (losses) on available-for-sale securities...................... (34,172)
Total equity capital........................................................................ 414,931
Total liabilities, limited-life preferred stock, and equity capital......................... 6,829,789
</TABLE>
2
